The Framing Of The Constitution Of The United States

121 257

THE FRAMING OF THE CONSTITUTION
OF THE UNITED STATES

THE FRAMING OF THE
CONSTITUTION

OF THE UNITED STATES

BY

MAX FAKRAND

NEW HAVEN AND LONDON
YALE UNIVERSITY PEESS

TO
A. LAWRENCE LOWELL

PREFACE

For over ten years the writer has been engaged
in collecting and editing the material available
upon the work of the convention that framed the
constitution of the United States. Collating of
texts is a wearisome and often merely a mechani-
cal task, but in the process the editor becomes
more or less familiar with the content of the docu-
ments. In the present instance the form in
which the work finally shaped itself required a
knowledge of the proceedings of the convention
not merely as a whole, but from day to day, and
it necessitated a familiarity with the thought and
expressions of the individual members. When to
this was added an acquaintance with the person-
alities of the more important delegates, a mental
picture of the convention was formed which de-
veloped into a conviction as to what the delegates
were trying to do and what they actually accom-
plished.

It is with no idea of attempting the final his-
tory of the formation of the constitution that the
present book is written. If there be any truth
in the epigrammatic definition that "history is
past politics," it is equally true that, in the case

[vii]

PREFACE

of an institution still existing, history is present
politics as well. So long as it remains the instru-
ment under which the government of the United
States is conducted, it is doubtful that any one,
any American at least, can write the final word
regarding the framing of our constitution.

Nor is this intended to be a complete history.
It is a brief presentation of the author's personal
interpretation of what took place in the federal
convention. It is merely a sketch in outline, the
details of which each student must fill out
according to his own needs.

This book is founded upon the work the author
has already referred to as edited by himself,
The Records of the Federal Convention (New
Haven, Yale University Press, 1911. 3 vols.)*
In the writing of it scarcely anything else has
been used. The Records are so arranged as to-
render most of the citations easily found, and
accordingly, with few exceptions, all footnote
references have been omitted.

During the years that the work of editing and
writing has been in progress, the author has pre-
sented this subject for study to classes, both
graduate and undergraduate, at different institu-
tions. To the members of those classes who have
endured the exploitation of his pet theories and
ideas, who have themselves suggested new points
of view, and who have stimulated him to his best

[viii]

PREFACE

efforts, the author would acknowledge his grate-
ful indebtedness.

Mr. E. Byrne Hackett, in his capacity as
manager of the Yale University Press, has taken
the greatest interest in the mechanical make-up
of this book. In a personal and purely friendly
way he also read the entire manuscript and
made suggestions which resulted in its better-
ment. For his co-operation the author is heartily
appreciative.

M. K

New Haven, November 8, 1912.

CONTENTS

Preface vii

CHAPTER PAGE

I. The Calling of the Federal Convention . 1

II. The Convention and Its Members . . 14

III. The Defects of the Confederation . . 42
IV. The Organization of the Convention . 54

V. The Virginia Plan 68

VI. The New Jersey Plan 84

VII. The Great Compromise 91

VIII. After the Compromise 113

IX. The Committee of Detail 124

X. Details and Compromises 134

XI. The Election of the President . . . 160

XII. Finishing the Work 176

XIII. The Completed Constitution .... 196

APPENDIX :

I. The Articles of Confederation . . . 211

II. The Virginia Plan 225

III. The New Jersey Plan 229

IV. The Constitution of the United States . 233
V. The Amendments to the Constitution . 252

Index 261

THE FRAMING OF THE CONSTITUTION
OF THE UNITED STATES

CHAPTER I

THE CALLING OF THE FEDERAL
CONVENTION

Democratic government was on trial before
the world. Thirteen British colonies had
asserted and established their independence be-
cause they declared the form of government
under which they had been living was destructive
of their "unalienable rights" of "life, liberty and
the pursuit of happiness." Each of those colon-
ies had established a government of its own, and
together they had formed a union of "Ti^CFiriffe^
States of America" by measm*>f certain articles
of confederation* The individual state govern-
ments were proving fairly satisfactory, but the
union was not Its inadequacy had become more
and more evident as the war for independence
had continued and the strain of the struggle had
grown harder to endure. As long as the war was
in progress, the states had held together through
sheer necessity; but as soon as the war was over,
the selfishness of the individual states was assert-
ing itself and the union was in danger of disinte-
gration. The thirteen united states of America
had renounced their allegiance to Great Britain,

[1]

THE FRAMING OF THE CONSTITUTION

because the latter country no longer governed
them well, and it now appeared as if they were
unable to govern themselves. If the people of
the United States were to prove their right "to
assume among the Powers of the earth, the sepa-
rate and equal station to which the Laws of
Nature and of Nature's God entitle them," they
must show themselves capable of establishing and
maintaining an efficient government. To justify
themselves before the world and to justify them-
selves in their own eyes, an effective union was
essential.

The articles of confederation represented the
first essay in united government that the newly
independent states had made. When their con-
gress in June, 1776, appointed a committee to
draft a declaration of independence, it appointed
another committee to prepare a "form of con-
federation," and the latter committee made its
report shortly after the Declaration of Independ-
ence was adopted. The difficulty of establishing
a union may be inferred from the fact that the
plan submitted by 'the committee was the subject
of intermittent discussion in congress for over a
year and when the amended plan was referred to
the states for ratification it was i

Although the articles of confederation were thus
not formally in operation WttiiK^^f, congress

[2]

CALLING OF THE FEDERAL CONVENTION

seems to have followed a procedure in accordance
with them, so that the experience of the confed-
eration extended over a longer time than the
official dates indicate, and really began with the
establishment of independence.

The one central organ of the newly established
government was a congress, which might well
have been termed a congress of states : in it all the
states were upon an equal footing, each with a
single vote, and the delegation from each state
was composed of not less than two nor more than
seven members, who were appointed annually in
whatever way the legislature of each state
directed, who were maintained at the expense of
their respective states, and who were subject to
recall at any moment. To the congress thus con-
stituted quite extensive powers were granted, but
with two important limitations : none of the more
important powers could be exercised "unless nine
States assent to the same," which was equivalent
to requiring a two-thirds vote; and when a deci-
sion had been reached there was nothing to
compel the states to obedience except the mere
declaration in the articles that "every State shall
abide by the determinations of the United States
in Congress assembled." Executive there was
none, beyond the committees which the congress
might establish to work under its own direction,
and the only federal courts were such as congress

THE FRAMING OF THE CONSTITUTION

might appoint for the trial of piracy and felony
on the high seas and for determining appeals in
cases of prize capture.

Under such conditions the decisions of con-
gress were little more than recommendations.
This was amply shown in the all-important
matter of obtaining funds. The articles pro-
vided that the national treasury should "be
supplied by the several States, in proportion to
the value of all land within each State, granted
to or surveyed for any person." Congress was
to determine the amount of money needed and to
apportion to each state its share. Congress did
so, but the states honored the requisitions exactly
to the extent that each saw fit, and congress had
no power and no right to enforce payment. What
was the result? If one may judge by the com-
plaints that were entered, it was more profitable
to disobey than to obey. In the dire straits for
funds to which it found itself reduced, congress
took advantage of the lack of information on
land values to juggle with the estimates, so as to
demand more of those states that had previously
shown a willingness to pay.

The financial situation was so serious that
early in 1781, before the articles had been finally
ratified, congress had already proposed to the
states an amendment authorizing the levy of a
five per cent duty upon imports and upon goods

[4]

CALLING OF THE FEDERAL CONVENTION

condemned in prize cases. The amendment was
agreed to by twelve states. But another weak-
ness of the confederation was here revealed, in
that the articles could only be amended with the
consent of all of the thirteen states. The refusal
of Rhode Island was sufficient to block a measure
that was approved of by the twelve others. In
1783 congress made another attempt to obtain a
revenue by requesting authority for twenty-five
years to levy certain duties, and by recommend-
ing for the same term of twenty-five years
that the states should contribute in proportion
$1,500,000 annually, the basis of apportionment
being changed from land values to numbers of
population, in which three-fifths of the slaves
should be counted. In three years only nine of
the states had given their consent and some of
those had consented in such a way as would have
hampered the effectiveness of the plan. It was,
however, the only relief in sight and in 1786
congress made a special appeal to the remaining
states to act. Before the end of the year, all of
the states had responded with the exception of
New York, Again the inaction of a single state
effectually blocked the will of all the others.

Matters of commerce were inseparably asso-
ciated with those of finance and were at this time
of equal moment. In 1784 congress made an
appeal to the states in which it was said: "The

[5]

THE FRAMING OF THE CONSTITUTION

situation of Commerce at this time claims the
attention of the several states, and few objects of
greater importance can present themselves to
their Notice. The fortune of every Citizen is
interested in the success thereof; for it is the
constant source of wealth and incentive to indus-
try; and the value of our produce and our land
must ever rise or fall in proportion to the pros-
perity or adverse state of trade." The people of
the United States seemed to be surprised and
even resentful that their political independence
had resulted in placing them outside of the
British colonial system. As British colonists
they had protested against the restrictions of the
navigation acts, but they found those acts still
more obnoxious when enforced against them-
selves as foreigners. Trade was adjusting itself
to the new conditions and seeking new outlets,
but until this had developed to a sufficient extent
to make itself felt, the only possible policy,
according to the prevailing conceptions of the
time, was that of retaliation. The purpose of
retaliation was to force other countries, and
Great Britain in particular, to make concessions
in favor of the United States, It was for this
purpose that congress appealed to the states in
1784. It was virtually a navigation act for
which power was requested and only for the term
of fifteen years. All of the states responded, but

[6]

CALLING OF THE FEDERAL CONVENTION

with so many conflicting qualifications and
conditions that the attempt was again a failure.

Pending a grant of power to congress over
matters of commerce, the states acted individu-
ally. A uniform policy was necessary, and while
a pretense was made of acting in unison to
achieve a much desired end, it is evident that
selfish motives frequently dictated what was
done. Any state which enjoyed superior condi-
tions to a neighboring state was only too apt to
take advantage of that fact. Some of the
states, as James Madison described it, "having
no convenient ports for foreign commerce, were
subject to be taxed by their neighbors, through
whose ports their commerce was carried on.
New Jersey, placed between Philadelphia and
New York, was likened to a cask tapped at both
ends ; and North Carolina, between Virginia and
South Carolina, to a patient bleeding at both
arms." The Americans were an agricultural and
a trading people. Interference with the arteries
of commerce was cutting off the very life-blood
of the nation, and something had to be done.
The articles of confederation provided no
remedy, and it was evident that amendments to
that document, if presented in the ordinary way,
were not likely to succeed. Some other method
of procedure was necessary, and a promising
way had already opened.

THE FRAMING OF THE CONSTITUTION

Virginia and Maryland had come to a working
agreement regarding the navigation of Chesa-
peake Bay and some of its tributary waters, and
those two states had requested the co-operation
of Pennsylvania and Delaware. This whole pro-
ceeding was distinctly unconstitutional, for the
articles of confederation specified that all such
agreements must receive the consent of congress
and that had not been obtained. But whether
illegal or not it seemed to be an effective way of
working, and in 1786 it was tried on a larger
scale. Early in that year Virginia appointed
commissioners "to meet such commissioners as
may be appointed in the other states of the
Union, at a time and place to be agreed on, to
take into consideration the trade of the United
States." This proposal for a general trade con-
vention seemed to meet with approval, and the
Virginia commissioners, two of whom were
James Madison and Edmund Randolph, then
named Annapolis and the first Monday in
September, 1786, as the place and the time.

In spite of the apparently favorable attitude
towards it, when the time for the convention
arrived only five states were represented. At
least four other states had appointed com-
missioners, but the individuals had not hastened
their attendance. With so small a number pres-
ent it was impossible for the convention to accom-

m

CALLING OF THE FEDERAL CONVENTION

plish the purpose of its meeting; but with the
advance in public opinion, the commissioners did
not hesitate to recommend another convention of
wider scope. The French representative in this
country wrote home to his government, what was
evidently whispered among the elect, that there
was no expectation and no intention that anjT-
thing should be done by the convention beyond
preparing the way for another meeting, and that
the report was hurried through before sufficient
states were represented to be embarrassing.

Alexander Hamilton was greatly interested in
this whole movement for the betterment of con-
ditions ; he took a leading part in the Annapolis
trade convention, and is supposed to have drafted
its report. Whether or not there is any truth in
the assertion above, that Hamilton thought it
advisable to conceal his purposes, there is no
doubt that the Annapolis convention was an all-
important step in the progress of reform. Its
recommendation was the direct occasion of the
gathering of the convention that framed the
constitution of the United States.

The recommendation, which the Annapolis
delegates made, took the form of a report to the
legislatures of their respective states, in which
they referred to but did not enumerate "impor-
tant defects in the System of the Foederal Gov-
ernment," which were "of a nature so serious as,

[9]

THE FRAMING OF THE CONSTITUTION

... to render the situation of the United States*
delicate and critical, calling for an exertion of
the united Virtues and Wisdom of all the Mem-
bers of the Confederacy." They were accord-
ingly "of Opinion, that a Convention of Depu-
ties from the different States, for the special and
sole purpose of entering into this investigation
[of determining what the defects were] and
digesting a Plan for supplying such defects"
was the best method of procedure. To give their
proposal a more concrete form they finally sug-
gested that their respective states should "use
their endeavours to procure the concurrence of
the other States, in the Appointment of Com-
missioners to meet at Philadelphia on the second
Monday in May next, to take into Consideration
the situation of the United States to devise such
further Provisions as shall appear to them neces-
sary to render the Constitution of the Foederal
Government adequate to the exigencies of the
Union; and to report such an Act for that pur-
pose to the United States in Congress Assem-
bled, as when 'agreed to by them and afterwards
confirmed by the Legislatures of every State* will
effectually provide for the same."

The Virginia legislature acted promptly upon
this recommendation and, as no method was
specified, very naturally followed its practice in
providing for the representation of the state

[10]

CALLING OF THE FEDERAL CONVENTION

in congress by appointing a similar delegation
to go to Philadelphia. This precedent of
appointing a delegation similar to its delegation
in congress was followed by the other states.
JNew Jersey took action almost at the same time
as Virginia, and actually named her deputies in
advance of that state. Within a few weeks,
Pennsylvania, North Carolina, Delaware, and
Georgia had also made appointments. As yet
congress had not given its approval of the plan,
and many people in the United States doubted
that such a meeting could accomplish anything
without having the sanction of the only body
authorized by the articles of confederation to
propose amendments. This last obstacle was
removed, however, on February 21, 1787, when
congress adopted a resolution in favor of a con-
vention, and embodied the suggestions of the
Annapolis report as to time and place.

Before the time fixed for the meeting of the
Philadelphia convention, or shortly after that
date, all of the other states had appointed depu-
ties with the exception of New Hampshire and
Rhode Island. New Hampshire was favorably
disposed towards the meeting, but owing to local
conditions failed to act before the convention
was well under way. Its deputies, however,
arrived in time to share in some of the most
important proceedings. Rhode Island alone

rin

THE FRAMING OF THE CONSTITUTION

refused to take part, though a letter signed by a
committee of merchants, tradesmen, and others,
was sent to the convention expressing their
regret at Rhode Island's failure to be represented
and pledging their influence to have the result
of the deliberations approved and adopted by
the state.

The federal convention was thus summoned
to meet in Philadelphia on the second Monday
of May, 1787. It was authorized by congress,
and it was shared in by twelve of the thirteen
states comprising the confederation. Whatever
complex of causes there may have been, the
sequence of events resulting in this convention
was, as outlined, the apparent impossibility of
obtaining from the states the necessary amend-
ments to vest in congress adequate powers in
taxation and commerce, the calling of a trade
convention, and then the calling of ^ general
convention.

CALLING OF THE FEDERAL CONVENTION

NOTE

THE THIRTEEN UNITED STATES WITH DATES OF
THEIE FIRST CONSTITUTIONS

New Hampshire . . . 1776

South Carolina .... 1776

Rhode Island1 .... 1776

Virginia ..... 1776

New Jersey .. . . . 1776

Delaware ..... 1776

Pennsylvania .... 1776

Connecticut2 .... 1776

Maryland .... 1776

North Carolina .... 1776

Georgia 1777

New York .... 1777

Massachusetts .... 1780

1 Continued tinder charter of 1663,

2 Continued under charter of 1663.

[13]

CHAPTER II

THE CONVENTION AND ITS
MEMBERS

VIRGINIA had been the first state to act upon
the suggestion of the Annapolis report and it
followed its practice in providing for the state's
representation in congress. The appointment
of seven deputies was ordered by joint ballot of
both houses of the legislature, any three of whom
were authorized to join with the deputies from
other states "in devising and discussing all such
Alterations and farther Provisions as may be
necessary to render the Foederal Constitution
adequate to the Exigencies of the Union and in
reporting such an Act for that purpose to the
United States in Congress as when agreed to by
them and duly confirmed by the several States
will effectually provide for the same." It will fee

- tin*, & •

The modifications are slight and if they have any
significance, they indicate a willingness on the
part of Virginia to render the work of the
convention effective.

At the head of its deputation Virginia placed
the leading citizen of the state, and the leading

[14]

THE CONVENTION AND ITS MEMBERS

citizen of the United States as well, George
Washington. He was then fifty-five years of
age and at the height of his popularity. The suc-
cessful outcome of the Revolution had effectually
silenced all criticism of his conduct of the
war and his retirement to Mount Vernon had
appealed to the popular imagination. The grati-
tude of a people, as yet unmixed with envy and
undiminished by the rancor of party bitterness,
placed him upon the very pinnacle of public
favor. The feeling towards him was one of devo-
tion, almost of awe and reverence. His presence
in the convention was felt to be essential to the
success of its work and, much against his will,
Washington was finally persuaded to accept the
appointment.

Patrick Henry was the second on the list, but
declined to serve. The next year he came out in
bitter opposition to the constitution. Dr.
Grigsby, the historian of the Virginia state con-
vention of 1788, reports that when asked why he
had not taken his seat in the federal convention
and helped to make "a good Constitution instead
of staying at home and abusing the work of his
patriotic compeers? Henry, with that magical
power of acting in which he excelled all his
contemporaries, and which before a popular
assembly was irresistible, replied: 'I smelt a
Rat.' " To the vacancy caused by Henry's

[15]

THE FRAMING OF THE CONSTITUTION

refusal the governor appointed Dr. James
McClurg, a learned physician, but with little
experience in public life. Richard Henry Lee
and Thomas Nelson were also elected but
declined to serve.

The next on Virginia's list was the governor
of the state, Edmund Randolph, Thirty-four
years old, portly and nearly six feet tall, he had a
remarkably handsome face with large and bril-
liant dark eyes. His manners were dignified
and polished. He usually showed an excellent
command of language and appeared well in
debate. As a leader he was wanting in decision,
as a figurehead he was splendid.

Then came John Blair, whose learning
and ability had made him a judge in the
highest courts of Virginia. Courteous, gentle-
mannered, and particular in dress, he was, as
one of his fellow-delegates, Pierce of Georgia,
remarked, "one of the most respectable Men in
Virginia, both on account of his Family as well
as fortune/51 He was no orator, and he never
played a conspicuous part, "but his good sense,
and most excellent principles, compensate for
other deficiences."

1 William Pierce of Georgia left a series of brief character
sketches or notes of his fellow-delegates, evidently jotted down
at the time. Original, and very interesting, they have been of
material service in the preparation of this chapter. Most of the
direct quotations are taken therefrom.

[16]

THE CONVENTION AND ITS MEMBERS

James Madison was the most inconspicuous
of the Virginia delegation. He was slender,
under medium height, retiring in manner and
"always dressed in black." He was a student
of history, methodical and indefatigable. But
Madison took an active part in public affairs,
and at thirty-six he had held various official posi-
tions in Virginia and twice represented his state
in congress. Pierce described him by saying that
"every Person seems to acknowledge his great-
ness. He blends together the profound poli-
tician with the Scholar. . . . and tho? he cannot
be called an Orator, he is a most agreeable,
eloquent and convincing Speaker. . . . The
affairs of the United States, he perhaps, has the
most correct knowledge of, of any man in the
Union." Madison was essentially a scholar in
politics.

Two notable men completed this remarkable
deputation. One was George Wythe, fifty-five
years old, a signer of the Declaration of Inde-
pendence, "the famous professor of law" at
William and Mary, and for ten years a chan-
cellor of the state. The other was George
Mason, the author of the Virginia Bill of Rights
and at sixty-two the rival of Patrick Henry in
popular estimation as the champion of the rights
of the people and of the states. According to
Madison, he possessed "the greatest talents for

THE FRAMING OF THE CONSTITUTION

debate of any man he had ever seen or heard
speak." He was a gentleman of the old school,
courtly but self-willed.

NEW JERSEY, the next state to act, appointed
four commissioners and later increased the num-
ber to six, any three of whom were to represent
the state "for the purpose of taking into Con-
sideration the state of the Union, as to Trade and
other important Objects, and of devising such
other Provisions as shall appear to be neces-
sary to render the Constitution of the Federal
Government adequate to the exigencies thereof."

The delegation from this state was hardly
equal to that of Virginia either in reputation or
ability, although it contained some notable men.
David Brearley, forty-one years old, was the
chief justice of the state. He was an able,
though not a brilliant man, and of a tempera-
ment and character that won and retained for
him the complete respect of the people. William
C. Houston, for twelve years a professor of
mathematics at Princeton, admitted to the bar
after he was forty, had been appointed clerk of
the state supreme court, and had been one of the
delegates to the Annapolis convention. William
Paterson, born at sea of Irish parents, now a
man of a little over forty and another of the
delegates to Aiuiapolis, had been a member of
the continental congress. He had also been

[18]

THE CONVENTION AND ITS MEMBERS

attorney-general of his state for eleven years.
Short in stature, unassuming in appearance and
manner, Paterson was all the more astonishing in
debate, where he revealed wide knowledge and
great ability.

William Livingston, the governor of the state,
who was also noted as a wit and writer, was
appointed by the legislature in the place of John
INTeilson, who had declined. He was independent
in action as well as in speech, but he was suffi-
ciently admired and respected to have been regu-
larly re-elected governor of his state since the
beginning of the Revolution. In person he was
so tall and thin that he was frequently referred
to as the "whipping post." Pierce admired him
as being "about sixty years old, and remarkably
healthy," but he criticized him for seeming
"rather to indulge a sportiveness of wit, than a
strength of thinking."

Abraham Clark, who was appointed at this
time, never attended, and the delegation was
completed with the selection of Captain Jona-
than Dayton, who had served with distinction in
the Revolution. At twenty-seven, he was one of
the youngest men appointed, and occasionally
revealed a hasty temper which was characteristic
of him but was not in harmony with the general
tone of the convention. He was a member of
the state legislature, but he and Brearley were

[19]

THE FRAMING OF THE CONSTITUTION

the only attending delegates from New Jersey
who had not served in congress.

PENNSYLVANIA in appointing seven deputies,
any four of whom were authorized to represent
the state, specifically cited Virginia's act and
vested its representatives with powers that were
phrased like those of Virginia.

At the head of the delegation was General
Thomas Mifflin, a former member and president
of congress. At forty-three he was still ex-
tremely popular in spite of the fact that he had
been a member of the cabal against Washington
in favor of Gates. Next came "Bob" Morris,
large, florid, and pleasantly impressive. Al-
though foreign-born, he had served his adopted
country well as a member of congress, a signer
of the Declaration of Independence, and as the
financier of the Revolution. Much was expected
of him in the convention because of the financial
situation and the definite ideas he was known to
possess upon that subject, and also because of
the reputation that "when he speaks in the
Assembly of Pennsylvania, he bears down all
before him."

The less conspicuous members of the Pennsyl-
vania delegation, although they had all been in
congress, were: George Clymer, a signer of the
Declaration of Independence, able but extremely
diffident, and never heard to speak ill of anyone;

[20]

THE CONVENTION AND ITS MEMBERS

Jared Ingersoll, the ablest jury lawyer in Phila-
delphia; and Thomas Fitzsimons, of Irish birth,
now a prominent and successful merchant in
Philadelphia.

James Wilson was the strongest member of
this delegation and Washington considered him
to be one of the strongest men in the convention.
Born and educated in Scotland, he came to
America when twenty-three years old. He had
served several times in congress, and had been
one of the signers of the Declaration of Inde-
pendence. At fortynfiw he was regarded as one
o4tfa^&fole$t lawyer in< Am&em&. Tall and large
featured, his nearsightedness compelling the use
of glasses and adding a touch of sternness to his
appearance, he had won the respect of many but
the affection of few. "James the Caledonian,"
as he was sometimes called, was rather a tribute
to his character and his oratory than a mark of
popularity.

Gouverneur Morris was probably the most
brilliant member of the Pennsylvania delegation
and of the convention as well. Sharp-witted,
clever, startling in his audacity, and with a won-
derful command of language, he was admired
more than he was trusted, for he was inconsistent
and he was suspected of being lax in morals as
well as lacking in principles. A crippled arm
and a wooden leg might detract from his per-

THE FRAMING OF THE CONSTITUTION

sonal appearance, but they could not suppress
his spirit. This story is told in various forms and
doubtless has a foundation of truth, and the ver-
sion which attaches the incident to the federal
convention is as good as another: Morris was one
day boasting in the presence of several delegates
that he was afraid of no one, when Hamilton
offered to bet him a dinner and wine for the com-
pany that he would not dare to treat General
Washington familiarly by slapping him on the
shoulder. Hamilton lost the bet, but Morris in
recounting his experience said that he had never
won a bet which cost him so dearly, and Wash-
ington had only "looked at" him.

Shortly before the convention met, by a
special act of the legislature, the aged Benjamin
Franklin, president of the state, was added to
the Pennsylvania delegation. "The American
Socrates" was second only to Washington in
reputation and popularity, but at eighty-one his
powers were failing. Pierce notes with apparent
surprise that "he does not shine much in public
Council, — he is no Speaker, nor does he seem to
let politics engage his attention. He is, however,
a most extraordinary Man, and tells a story in
a style more engaging than anything I ever
heard."

NOETH CAROLINA appointed five deputies, any
three of whom were to represent the state, and

THE CONVENTION AND ITS MEMBERS

who were authorized "to discuss and decide upon
the most effectual means to remove the defects
of our Foederal Union, and to procure the en-
larged Purposes which it was intended to effect."
This delegation was not the equal of those that
had been previously appointed from the other
states. Governor Richard Caswell and Willie
Jones declined commissions. When substitutes
had been appointed, the head of the delegation
was Ex-Governor Alexander Martin. He had
been dismissed from the army for cowardice in
the battle of Germantown, but he had shown
liimself to be a good politician in that he had
succeeded, in spite of his disgrace, in being
governor of his state from 1782 to 1785.

Next came William R. Davie, Not yet thirty
years old and one of the youngest members in
the convention, with a winning personality, he
was popular but not prominent. About the
middle of June various Philadelphia papers gave
"an exact list of the members of the convention."
First came those who had risen to the title of
"His Excellency," the "Honorable Governor,"
etc. Then were given those who were or had
been "honorable Delegates to Congress." Lastly
came those who were classified as "the following
respectable Characters." Davie was essentially
in this class.

Richard D. Spaight was also under thirty,

[*»]

THE FRAMING OF THE CONSTITUTION

and if he had not been a delegate to congress,
would doubtless have been classed among the
"respectable characters." Pierce described him
as "a worthy man, of some abilities, and fortune/'
Doctor Hugh Williamson had been a preacher
and then a professor of mathematics in the col-
lege of Philadelphia before taking up the
study of medicine. He was eccentric but good-
humored, and without being a good speaker he
was very fond of debating. One of his contem-
poraries reported that it was hard to know his
character well, it was even possible that he hadn't
any. Perhaps Pierce characterized him aptly
when he said that "in his manners there is a strong
trait of the Gentleman." William Blount, twice
a delegate to congress, faithful, but without "any
of those talents that make men shine . . , plain,
honest and sincere," completed this mediocre
delegation.

The DELAWARE commission was copied after
those of Pennsylvania and Virginia, but with the
important proviso "that such Alterations or
further Provisions, or any of them, do not extend
to that part of the Fifth Article of the Con-
federation . . . which declares that 'In determin-
ing Questions in the United States in Congress
Assembled each State shall have one Vote/ "
Five deputies were appointed, any three of whom
were to represent the state.

[W]

THE CONVENTION AND ITS MEMBERS

At the head of the delegation was George
Read, then in his fifty-fourth year. Short, slight,
and with an appearance of physical weakness,
he made but a poor impression as a speaker,
although he had great ability as a lawyer. He
commanded the implicit confidence of his state,
which among other capacities he had repre-
sented in congress, and as a signer of the Decla-
ration of Independence, and in the Annapolis
convention.

Gunning Bedford had a great reputation as an
advocate, but though an eloquent, he was also a
nervous speaker and apt to be hasty and impetu-
ous. His epitaph reads that "his form was
goodly," which is a euphemistic way of describing
what Pierce called being "very corpulant," and
to Pierce he did not look his forty years. He, too,
had represented his state in congress.

The most noted of the Delaware deputation
was John Dickinson, author of the "Farmer's
Letters," and chairman of the committee of con-
gress that framed the articles of confederation,
He was able, scholarly, and sincere, but nervous,
sensitive, and cautious to the verge of timidity.
His refusal to sign the Declaration of Indepen-
dence had cost him his popularity. Though he
was afterwards returned to congress and became
president successively of Delaware and Pennsyl-
vania, he never succeeded in completely regain-

[25]

THE FRAMING OF THE CONSTITUTION

ing the public confidence. A shadow of mistrust
was always visible. He appeared older than his
fifty-five years would warrant.

Richard Bassett and Jacob Broom completed
the delegation. They were about the same age
of thirty-five, and came under the classification
of "respectable characters." Pierce regarded
the former with curiosity or misgiving as "a
religious enthusiast, lately turned Methodist/*
but he commended him, and Broom as well,
for having sense enough not to talk in the
convention.

GEORGIA also modeled its commission on that
of Virginia and appointed six commissioners, any
two of whom were to represent the state.
Ex-Governor George Walton and Nathaniel
Pendleton either declined or failed to attend and
the delegation was thus reduced to four.

William Few was a self-made man who had
been admitted to the bar, and his colleague
Pierce thought that "from application" he had
"acquired some knowledge of legal matters."
He had done more than that, however, and
though socially he was at a disadvantage he was
evidently well thought of in his state, for he was
a member of the state legislature and twice had
been a delegate to congress.

Abraham Baldwin, thirty-three years old, was
the ablest member of the delegation, Born in

THE CONVENTION AND ITS MEMBERS

Connecticut, educated at Yale and a tutor there
for several years, he had served during the Revo-
lution as a chaplain in the army. After the war
he had moved to Georgia, where he was admitted
to the bar and became a member of the state
legislature. He originated and put through the
plan for the University of Georgia and then
became its president. He had twice been a
member of congress.

William Pierce, whose comments on his fellow-
delegates have been so frequently quoted, was
nearly fifty years old. He had served with dis-
tinction during the Revolution, and was at this
time a delegate to congress. Although he did not
attempt to describe his own character, but left
it for "those who may choose to speculate on it,
to consider it in any light that their fancy or
imagination may depict,9' he was evidently
blessed with a sense of humor.

The last of the delegation was William Hous-
toun, who was admitted by Pierce to be of good
family and to have been well educated in Eng-
land. His next comment, however, is scathing:
"Nature seems to have done more for his cor-
poreal than mental powers. His Person is strik-
ing, but his mind very little improved with useful
or elegant knowledge."

The six states that have been considered were
acting on their own responsibility. The com-

THE FRAMING OF THE CONSTITUTION

missions they had issued all provided for a revis-
ion of the articles of confederation, but congress
was the only body authorized to propose amend-
ments to that document, and congress had made
no move. When it became evident that the con-
vention had sufficient support to render its exist-
ence a certainty, it seemed wise to congress to
approve what could not be helped. Accordingly,
on February 21, 1787, congress declared:

Whereas there is provision in the Articles of Con-
federation and perpetual Union, for making alterations
therein, . . . And whereas experience hath evinced,
that there are defects in the present Confederation, as
a mean to remedy which, several of the States . . . have
suggested a convention for the purposes expressed in
the following Resolution. . . .

Resolved, That in the opinion of Congress, it is
expedient, that on the second Monday in May next, a
Convention of Delegates, who shall have been appointed
by the several States, be held at Philadelphia, for the
sole and express purpose of revising the Articles of
Confederation, and reporting to Congress and the
several Legislatures, such alterations and provisions
therein, as shall, when agreed to in Congress, and con-
firmed by the States, render the federal Constitution
adequate to the exigencies of Government, and the
preservation of the Union.

[28]

THE CONVENTION AND ITS MEMBERS

in accordance with specific instructions to its
delegates by that state. The one serious obstacle
to the convention being thus removed, New York
promptly joined the other states, and using the
words of the resolution of congress, appointed
three delegates.

The first of these was Robert Yates, an able
judge of the state supreme court. He was
nearly fifty years old, had been a member of the
New York provincial congress and had served
on the committee that framed the state constitu-
tion of 1777. John Lansing was a young lawyer
of moderate ability, but he evidently was some-
thing of a politician, for he had been a member of
the state house of representatives, the mayor of
Albany, and a delegate to congress.

The third and ablest of this delegation was
Alexander Hamilton, who was one of the small-
est men physically and one of the biggest intellec-
tually who attended the convention. Only
thirty years old, his reputation was already
established by what he had done in the Revolu-
tion, in his state legislature, in the continental
congress, and in the Annapolis convention. The
logic of his arguments was convincing, but he
was not a great speaker, except on the few
occasions when his feelings overmastered his self-
consciousness. He was too arrogant and over-
bearing to be popular, but he was respected for

[29]

THE FRAMING OF THE CONSTITUTION

his ability and admired for his originality and
his daring.

SOUTH CAROLINA followed promptly after
New York and appointed four deputies, two of
whom might represent the state "in devising and
discussing all such Alterations, Clauses, Articles
and Provisions, as may be thought necessary to
render the Foederal Constitution entirely ade-
quate to the actual Situation and future good
Government of the confederated States."

At the head of the delegation was the Irish-
American, John Rutledge, who was regarded as
the great orator of his day, and as "one of the
claims to fame of South Carolina." He was
approaching fifty and he had been a member of
congress, governor of his state, and chancellor
also. A man of unquestioned ability, noted for
his quick wit and for his boldness and decision,
whose temper was proud and imperious, he was
distinctly a person to be reckoned with. Out-
wardly he was possessed of considerable means,
but it was rumored that his debts exceeded his
fortune.

Charles Pincfcney, at twenty-nine, was the
youngest member of the delegation and one of
the youngest men in the convention, and he must
have appeared to be still younger, for Pierce
speaks of him as only "twenty-four." Rather
superficial but brilliant, with a high opinion of

[30]

THE CONVENTION AND ITS MEMBERS

his own ability and with extraordinary conversa-
tional, powers, it is little wonder that he pushed
himself forward, and it is not surprising that he
seems occasionally to have been sharply snubbed
by his elders.

Charles Cotesworth Pinckney, a cousin nearly
ten years older, was a man of a very different
type. He had risen to the rank of brigadier-
general during the Revolution, but he had been
educated at Oxford and he was now a lawyer of
promise, and a great social favorite. When he
spoke it was with conviction, and what he said
was listened to with respect.

Pierce Butler, of noble birth and inordinately
vain of it, had served in America as an officer in
the British army. He was a man of fortune and
having sold his commission and settled in this
country he had become very popular. At forty-
three, he was a member of the South Carolina
legislature and had just been elected to congress.

Henry Laurens, a former president of con-
gress, either declined an appointment or failed
to attend.

MASSACHUSETTS cited the resolution of con-
gress, and commissioned five delegates, any three
of whom were authorized to represent the state
"for the purposes aforesaid." Francis Dana, one
of the appointees, did not accept or at least did

[81]

THE FRAMING OF THE CONSTITUTION

not attend the convention and the delegation was
reduced to four.

Elbridge Gerry was small in person, but a
prominent figure in state politics. At forty-
three he had twice been a delegate to congress,
and was one of the signers of the Declaration of
Independence and of the articles of confedera-
tion. He was a successful merchant and greatly
interested in questions of commerce and finance.
Serenely confident of his own judgment, and
unable always to distinguish between what was
essential and what was of minor importance,
his decisions and subsequent actions sometimes
seemed unreasonable, not to say erratic.

Nathaniel Gorham, twice a delegate to con-
gress and president of that body during his
second term, had left the president's chair to
attend the convention. He was a man of good
sense rather than great ability, but he stood
"high in reputation, and much in the esteem of
his Country-men." Pierce further said of him
in his fiftieth year that he was "rather lusty, and
has an agreeable and pleasing manner."

Rufus King, somewhat over medium height,
was an unusually handsome man and with great
personal charm. Of marked ability, and an elo-
quent speaker with a sweet, clear voice, it is no
wonder that "ranked among the Luminaries of
the present Age" he should be regarded as one of

[32]

THE CONVENTION AND ITS MEMBERS

the coming men of the new nation. He had been
opposed to any radical reform of the confedera-
tion, but convinced of his error he joined heartily
in the work of the convention and, as might be
supposed, his support was as heartily welcomed.

Caleb Strong, forty-two years old, tall and
angular, was rather unprepossessing in appear-
ance. Solid rather than brilliant, plain in speech
and manner, and of sterling integrity, he was
highly esteemed by his colleagues and was a
good representative of the country people of
Massachusetts.

CONNECTICUT also specifically referred to the
action of congress and appointed three delegates,
any one of whom might represent the state "for
the purposes mentioned." But as if in further
explanation the act goes on to say "and to
discuss upon such Alterations and Provisions
agreeable to the general principles of Republican
Government as they shall think proper to render
the federal Constitution adequate to the exigen-
cies of Government and the preservation of the
Union." Erastus Wolcott having declined to
serve, the commission consisted of Johnson, Sher-
man and Ellsworth.

William Samuel Johnson was sixty years of
age and was regarded as one of the most learned
men in this country; having received the degree
of Doctor of Laws from Oxford, he was always

[33]

THE FRAMING OF THE CONSTITUTION

addressed and referred to as "Doctor" Johnson,
A lawyer and judge who, in spite of his luke-
warmness during the Revolution, was greatly
respected, he had just been elected president
of Columbia College, Gentle-mannered, and
almost affectionate in his way of addressing
acquaintances, he was loved as well as respected.
Whenever he spoke, he was accorded the most
careful attention.

Roger Sherman, the mayor of New Haven,
was at sixty-six one of the older men in the con-
vention. Tall, awkward, and almost uncouth, he
was apt to be misjudged at first sight, for he was
a man of ability and of great practical wisdom.
Shoemaker, almanack-maker, lawyer, and judge
had been the successive stages of his progress.
"An able politician, and extremely artful in
accomplishing any particular object; — it is re-
marked that he seldom fails." Another of his
contemporaries wrote: "he is as cunning as the
Devil, and if you attack him, you ought to know
him well; he is not easily managed, but if he sus-
pects you are trying to take him in, you may as
well catch an Eel by the tail." He had been a
member of congress and a signer of the Declara-
tion of Independence and of the articles of
confederation.

Oliver Ellsworth, forty-two years old, was a
judge of the state supreme court who was greatly

[«*]

THE CONVENTION AND ITS MEMBERS

"respected for his integrity, and venerated for
his abilities." An eloquent speaker and an able
debater, he made an excellent third in this rather
remarkable trio. A few months later the French
charge d'affaires in a report to his government
spoke of Ellsworth and Sherman as typical of
Connecticut, and went on to say: "The people of
this state generally have a national character not
commonly found in other parts of the country.
They come nearer to republican simplicity: with-
out being rich they are all in easy circumstances."

MAEYLAND, in phrases very similar to those of
the original Virginia act, commissioned five
deputies, but owing to the exigencies of local
politics the final appointments were not made
until two weeks after the date set for the opening
of the convention. It was said that the first men
chosen by the legislature refused the appoint-
ment, because it would involve absence from the
state when their presence and influence were
needed to restrain a widespread movement for an
issue of paper money. At any rate, Charles
Carroll of Carrollton, Gabriel Duvall, Robert
Hanson Harrison, Thomas Sim Lee, and
Thomas Stone were elected but declined to
serve, and the delegation finally appointed was
regarded as inferior.

Dr. James McHenry, born in Ireland, had
been a surgeon during the Revolution and had

[36]

THE FRAMING OF THE CONSTITUTION

become secretary to the commander-in-chief and
Washington's friend and adviser. He had since
been a member of the state senate and a delegate
:o congress. A man of only moderate ability,
ae had at thirty-five achieved a prominence
somewhat beyond his merit.

Daniel of St. Thomas Jenifer, sixty-four years
Did, was a man of means and of some prominence
n his state. He had been a delegate to congress,
md one of the commissioners from Maryland to
neet with Virginia in the Chesapeake-Potomac
controversy. "He is always in good humour,
md never fails to make his company pleased with
lim. He sits silent in the Senate, and seems tc
)e conscious that he is no politician. From his
ong continuance in single life, no doubt but he
las made the vow of celibacy.5'

Daniel Carroll and John Francis Mercer were
;wo younger men, the one just over and the other
mder thirty, of large means, who were rising
nto political prominence in the state. Both had
Deen delegates to congress.

Luther Martin was an able lawyer, forty-three
fears old, who had been a delegate to congress
md had been appointed attorney-general of
Maryland. His career in politics was ascribed to
;he influence of undesirable interests, and it was
;aid that he was sent to the federal convention for
;he purpose of opposing the establishment of a

[36]

THE CONVENTION AND ITS MEMBERS

strong national government. He was a tiresome
speaker, perhaps a trait that he carried over from
his school-teaching days, and that fact together
with the suspicion attaching to his motives did
not insure him a cordial reception.

NEW HAMPSHIRE, according to common re-
port, failed to act because of lack of funds to
meet the expenses of its delegates, and the situa-
tion was not relieved until John Langdon offered
to pay all expenses out of his private purse.
When action finally was taken late in June, it
seemed necessary to defend or explain the state's
position. Accordingly in the act appointing
commissioners, a somewhat elaborate preamble
was adopted, recognizing the necessity of enlarg-
ing the powers of congress, and declaring the
unselfishness of the state and its willingness to
make every concession to the safety and happi-
ness of the whole. Tour deputies were accord-
ingly named, any two of whom were author-
ized to represent the state, "to discuss and decide
upon the most effectual means to remedy the
defects of our federal Union."

Langdon, who was naturally the first man
named, was not yet fifty years old and had made
a large fortune in commerce. He was sometimes
referred to as the Robert Morris of his state,
He was eminently a practical man, of strong

[37]

THE FRAMING OF THE CONSTITUTION

common sense, simple and unaffected, who had
taken an active interest in the Revolution, and
was "thoroughly republican in all his tendencies."
He had been a member repeatedly and speaker
of the state house of representatives, president of
his state, and twice a delegate to congress.

Nicholas Gilman appeared to be younger than
the thirty-odd years warranted. He had served
during the Revolution, but the reputation he
achieved seems to have been that of a self-seeker,
and of one desiring to be appointed to public
offices. A year before he had been elected to
congress, and there on account of his youth and
presumptuous airs his colleagues promptly
dubbed him "Congress." Pierce said that though
there was "nothing brilliant or striking" there
was "something respectable and worthy in the
man." But the French charge d'affaires, Otto,
reported to his government that his representing
New Hampshire in the convention proved that
there was not much from which to make a choice
in that state.

John Pickering and Benjamin West were
appointed but did not attend the convention, so
that New Hampshire was represented by Lang-
don and Gilman only and they did not reach
Philadelphia until the end of July.

Nearly seventy-five names have been men-
tioned but characterizations have been attempted

[88]

THE CONVENTION AND ITS MEMBERS

of only the fifty-five who actually attended the
convention. In some respects they were a re-
markable body of men. At an average age of
forty-two or forty-three, although one-sixth
were of foreign birth, most of them had played
important parts in the drama of the Revolution,
a large majority, approximately three-fourths,
had served in congress, and practically all of
them were persons of note in their respective
states and had held important public positions,
In a time before manhood suffrage had been
accepted, when social distinctions were taken for
granted, and when privilege was the order of the
day, it was but natural that men of the ruling
class should be sent to this important convention.
Thomas Jefferson was in Paris and when he
heard of the appointments he wrote to John
Adams in London, "it really is an assembly of
demi-gods." The opinion thus expressed has
been commonly accepted since that time. The
objection to it lies in the fact that the Virginia
delegates whom Jefferson best knew were an
unusual set of men, while many of the other dele-
gates Jefferson knew only by reputation as men
of prominence in their states. As a matter of
fact, Virginia had set the fashion, which the coun-
try approved, and to be a delegate to Phila-
delphia became a desired honor. Appointments
were accordingly sought and obtained in several

[39]

THE FRAMING OF THE CONSTITUTION

instances by men of political influence. In other
cases appointments were due to less worthy
motives, approaching what might be termed cor-
ruption. In a few cases appointments were
made for convenience' sake to fill up the state
delegation. A contemporary, who was frankly
in the opposition, wrote: "I do not wish to de-
tract from their merits, but I will venture to
affirm, that twenty assemblies of equal number
might be collected, equally respectable both in
point of ability, integrity, and patriotism. Some
of the characters which compose it I revere;
others I consider as of small consequence, and a
number are suspected of being great public de-
faulters, and to have been guilty of notorious
peculation and fraud, with regard to public
property in the hour of our distress/31

Doubtless the truth lies between the two opin-
ions, tr^e, but the
convention as a whole was composed of men such

a sisiila* gathering at

iFord, P. L., Pamphlets on the Constitution of the United
States, p. 115.

[401

THE CONVENTION AND ITS MEMBERS

higher tone from the social conditions of the time,
the seriousness of the crisis, and the character of
the leaders.

CHAPTER III

THE DEFECTS OF THE CONFED-
ERATION

The convention had been called to meet in
Philadelphia and the delegates had been ap-
pointed. For what purpose? The report of
the Annapolis convention had recommended a
thorough investigation into the defects of the
confederation and the development of a plan for
remedying those defects, and the resolution of
congress had specified "for the sole and express
purpose of revising the Articles of Confedera-
tion/' After the experience of over a hundred
years under a better system, it is easy for us to
criticise the articles of confederation, for accord-
ing to present-day standards they may be con-
demned as utterly unfit, unworkable, and even as
"vicious" in principle,
that
that

To the men of that time the articles of
confederation appeared in no such light. His
contemporaries might not have been willing to
concur in Jefferson's extravagant statement that

THE DEFECTS OF THE CONFEDERATION

a comparison of our government with the govern-
ments of Europe "is like a comparison of heaven
and hell. England, like the earth, may be
allowed to take the intermediate station." Yet
John Jay seemed to regard it as somewhat of a
concession to admit that "our federal government
has imperfections, which time and more experi-
ence will, I hope, effectually remedy." Even
Washington, who of all men had suffered the
most from the intolerable inefficiency of congress,
had a good word to say for the government. Nor
is it sufficient to accept the apology of John
Marshall that, if the articles of confederation
really preserved the idea of union until the nation
adopted a more efficient system, "this service
alone entitles that instrument to the respectful
recollection of the American people." The fomi
of government that had been established was an
&%p&mmi®&> an attempt to solve the problem of
a confederated republic, and while no one would
have claimed that it was perfect most men would
have agreed with Jefferson that

If such was the contemporary point of view, it
is evident that the wording employed in the cre-
dentials of the delegates and in the resolution of
congress was no mere formal phraseology; the

[43]

THE FRAMING OF THE CONSTITUTION

federal convention was really called for the
"express purpose of revising the Articles of Con-
federation" and rendering them "adequate to the
exigencies of government, and the preservation
of the Union." To appreciate the work of the
federal convention, it is essential to understand
the task before it, as the delegates themselves
comprehended it. Accordingly it is necessary to
divest ourselves of preconceived ideas and preju-
dices due to modern misinterpretation, and to
try to determine what the men of the time had in
mind when they spoke of the defects "which
experience hath evinced that there are ... in
the present confederation." Fortunately the
problem is not a very difficult one to solve.
Interest was keen, the seriousness of the coun-
try's situation was appreciated and the topic was
frequently broached in correspondence between
men in all sections. Some of the letters of the
better known characters have been preserved to
us, and from these we can ascertain fairly
accurately the state of public opinion at that time.
Early criticisms of the confederation were
vague; they might almost be termed desultory.
But as time passed and interest increased, more
careful thought was given to the subject, with a
resultant increase in number and definiteness of
the defects noted. But the members of the fed-
eral convention would only deal with those

[44]

THE DEFECTS OF THE CONFEDERATION

defects in the confederation of which they knew.
The present study has therefore been limited
strictly to the writings of the delegates them-
selves prior to the time of meeting in Phila-
delphia, and to the records of proceedings of
which some of the members could not fail to have
had knowledge, such as the journals of congress*
It has already been shown that the wretched
condition of the government finances, and the
unsatisfactory state of foreign and domestic
trade, were responsible for the calling of the
Philadelphia convention. The two subjects were
closely connected. Ir^tte m&tte£ of trade a uni-
form was necessary, and that uniformity

codkl @&ty tee iofetaiBed by grsirffflg te tibe central
gs©wi»aieiit f ufl power over teade m&

t foreign and domestic* This meant of course
that duties would be laid and something in
the way of revenue would result. It was not
expected that this would be sufficient, and if the
credit of the United States was to be maintained,.
further and adequate powers of obtaining
revenue by direct and indirect taxation must be
provided. Whatever was done, some more equit-
able method of distributing the burden of taxa-
tion must be found than the unsatisfactory
system of requisitions based upon undetermin-
able land values. Many thoughtful observers
also saw that restrictions upon the issuing of

[45]

THE FRAMING OF THE CONSTITUTION

paper money were necessary, and that something
more uniform than the variable state currencies
was desirable. In view of subsequent events, it
is interesting to notice that Madison and Jeffer-
son were in favor of empowering the central
government to establish a national bank.

If it was exasperating to find themselves over-
reached in matters of international trade, it was
humiliating to find themselves too weak to force
the British to live up to the terms of the Treaty
of Paris of 1783, and it was positively disgraceful
to be unable to compel the individual states to
observe the provisions of that or any other
treaty that might be made.1 Without authority
to require the states to regard the principles of

i "There is a story, at one time commonly repeated, which illus-
trates the tenderness of the Virginia conscience on the subject of
the repudiation of English debts during the period 1783-1789,
A Scotchman, John Warden, a prominent lawyer and good classi-
cal scholar, but suspected rightly of Tory leanings during the
Revolution, learning of the large minority against the repeal of
laws in conflict with the treaty of 1783 (i.e., especially the laws
as to the collection of debts by foreigners), caustically remarked
that some of the members of the House had voted against paying
for the coats on their backs. The story goes that he was sum-
moned before the House in full session, and was compelled to beg
their pardon on his knees, but as he rose, pretending to brush the
dust from his knees, he pointed to the House and said audibly,
with evident double meaning, *Upon my word, a dommed dirty
house it is indeed/ The Journal of the House, however, shows
that the honor of the delegates was satisfied by a written assur-
ance from Mr. Warden that he meant in no way to affront the
dignity of the House or to insult any of its members." Grigsby,
Virginia Convention of 1788, II, 86.

[46]

THE DEFECTS OF THE CONFEDERATION

international law and incompetent even to punish
piracy or felony on the high seas, it was truly a
pitiable spectacle that the United States pre-
sented. When a contemporary who had traded
with various countries could say that he found
"this country held in the same light by foreign
nations as a well-behaved negro is in a gentle-
man's family,"2 there need be little wonder that
this newly independent and sensitive people
should demand reforms that would tend to dispel
some of the contempt inspired abroad. The least
that could be done was to establish a strong cen-
tral government which should have control of all
foreign relations.

These things were self-evident and there seems
to have been a general unanimity of sentiment in
favor of the reforms proposed. If those reforms
were carried out, the situation would have been
somewhat relieved, but the heart of the trouble
would not have been reached. A fundamental
difficulty of the union was to be found in the inde-
pendence and excessive power of the individual
states. Concrete instances of this are to be
noticed in the matters thus far considered, which
involved not merely trespassing by the states
upon one another's rights, but even directly dis-
regarding the articles of confederation. Agree-

2 Elliot, Jonathan, Debates in the Several State Conventions on
the adoption of the Federal Constitution, II, 34.

[47]

THE FRAMING OF THE CONSTITUTION

ments between the states were in direct contra-
vention of that instrument. So also were the
dealings with the Indians which several of the
states indulged in to the detriment of any uni-
form policy, so important in treating with uncivi-
lized peoples. But the blame for this encroach-
ment upon federal authority was not to be laid
at the door of the states alone. The confedera-
tion did not draw the line sharply between state
and federal powers, and even in the field open
to congressional action the government was fre-
quently too weak to move. Self-preservation,
rather than mere selfishness, actuated the states
in some instances. But whatever justification
there might be, it was greatly to be desired that a
negative or some check upon state legislation
should be vested in the central government.

There were some matters requiring greater
uniformity of treatment and procedure than
could be obtained from independent state action.
Such were naturalization, bankruptcy, education,
inventions, and copyright. Upon these subjects,
accordingly, congress ought to be authorized to
legislate. For somewhat different reasons other
matters were just as clearly beyond the scope of
state action and in these also the central govern-
ment should be given power: To define and pun-
ish treason, to establish and exercise jurisdiction
over a permanent seat of government, to hold and

[48]

THE DEFECTS OF THE CONFEDERATION

govern the western territory that had been ceded
by the states, to provide for the establishment of
new states and their admission into the union, to
maintain an efficient postal service and, some
said, to make internal improvements. If such
fields of action were granted to the central gov-
ernment, the states would still be free to exercise
sufficient authority in local matters. But experi-
ence had also shown that occasion might arise
when a state would welcome a strong hand to
assist it in preserving order within its boundaries.
Shays's rebellion had taught a much needed les-
son. It was not sufficient to place the state militia
under some central control. The central govern-
ment must be empowered to maintain an efficient
army and navy to protect the states against inter-
nal disorders, as well as against external dangers.
In other words, the authority of the federal gov-
ernment was to be effective in time of peace as
well as in time of war. As a further safeguard
for the states in maintaining their republican in-
stitutions, a guarantee of their constitutions and
laws was believed to be essential.

Some of the more superficial observers were
inclined to ascribe the difficulties of the confed-
eration to the defective organization of the gov-
ernment. Montesquieu, whose writings were
taken as political gospel, had shown the absolute
necessity of separating the legislative, executive,

[49]

THE FRAMING OF THE CONSTITUTION

and judicial powers. There ought, therefore, to
be a separate executive which should be able to
take the initiative when occasion demanded,
which should be capable of action in foreign rela-
tions and which, either with or without a council,
might have the power of appointment and the
right of veto. There ought to be an organized
federal judiciary which should have, in addition
to that developed under the articles of confedera-
tion, jurisdiction in matters relating to foreigners
or people of other states. And the composition
of congress should be entirely changed: there
ought to be two houses and a council of revision;
the method of voting by states and of requiring
nine votes ought not to be continued; the number
of members should be greater and the people
ought to be directly represented; the sessions
should be definite and not so frequently shifted
from one place to another; attendance should be
compulsory; the members should be prohibited
from holding other offices ; and the terms of office
and the compensation of members ought to be
such as would attract the best men in the country.
While recognizing the justice of these com-
plaints and the wisdom of the reforms proposed,
more thoughtful observers realized that another
and perhaps the fundamental weakness of the
confederation was the inability of congress to
enforce its demands. Under existing conditions

[50]

THE DEFECTS OF THE CONFEDERATION

it might be sufficient to render the federal con-
stitution superior to state constitutions and to
give the central government a negative or some
check upon state legislation, together with the
right and power of coercion. But there were a
few who had studied the situation who saw that
the changes desired were so far-reaching that, if
they were carried out, the confederation would
be transformed. They accordingly favored a
central government acting directly upon the
people with power to compel obedience.

The attempt to obtain amendments to the arti-
cles of confederation had taught by bitter experi-
ence that the objection of a single state was
sufficient to block the will of all the others. It
was evidently necessary, then, that provision
should be made for amendments to the new con-
stitution with the consent of less than the whole
number of states. It was also felt that this same
principle ought to be applied in the modifications
proposed in the existing instrument, and those
who were in favor of a government acting
directly upon the people advocated as a first step
in this process that the changes to be made in the
constitution should be ratified by the people
rather than by the state legislatures.

The points that have been noted represent
roughly what the members of the convention
seem to have had in mind at the time of their

151]

THE FRAMING OF THE CONSTITUTION

meeting in Philadelphia when they spoke of the
defects of the confederation. It would seem
probable that when such men as Madison and
Hamilton attempted to point out the defects of
the confederation, they would naturally include
everything requisite to good government that
was lacking in the articles of confederation. But
the defects that have been mentioned are much
more comprehensive than those which were noted
by any one person. Even Madison's summary —
prepared shortly before the convention met,
with a long experience in the congress of the
confederation and after a careful study of all
the confederations known to history — is only
approximately complete.

tibe convention tfeus
sen® of perfectly

each of which had revealed itself
in the experience of little more than ten years.
It was a time when men indulged in ^pt^^^fei-

and in olifekal theorizin, but

While several of the delegates in preparation for
their task read quite extensively in history and
government, when it came to the concrete prob-
lems before them they seldom, if ever, went
outside of their own experience and observation.

{581

THE DEFECTS OF THE CONFEDERATION

NOTE

PELATIAH WEBSTEB

Pelatiah Webster was a successful Philadelphia mer-
chant and interested in financial questions, upon which
he had written. In 1788, he brought out a small pam-
phlet entitled "A Dissertation on the Political Union
and Constitution of the Thirteen United States of
America, which is necessary to their Preservation and
Happiness; humbly offered to the Public." Upon the
basis of this, extravagant claims have been made for
Webster as the "architect of the constitution.55 Some
of his ideas were taken directly from the articles of con-
federation and from the amendments that had been
proposed thereto. Some of his ideas were purely fanciful,
and were of no value whatever. Some of the tilings wliich
he foresightedly pointed out were later embodied in the
constitution, but there is not the slightest evidence that
his pamphlet or ideas — directly or indirectly — actually
affected the work of the convention. In other words, it
would seem that the constitution would have taken ifcs
present form if the pamphlet in question had never been
written.

[53]

CHAPTER IV

THE ORGANIZATION OF THE CON-
VENTION

The convention had been called to meet in
Philadelphia on the second Monday in May. In
1787 this fell upon the fourteenth day of the
month. Upon that day, however, only a com-
paratively few delegates had arrived, and as
this was a meeting of state deputations, it was
essential that a majority of the states should be
represented. Partly owing to the difficulties and
slowness of travel, but partly owing to the dila-
tory habits developed in congress, where experi-
ence had shown that it was a waste of time to be
prompt in attendance, it was not until Friday,
the twenty-fifth of May, that seven states were
represented and the convention could proceed to
organize.

The meetings were held in the State House,
and it is commonly supposed that Independence
Hall was the room that was used. But Manas-
seh Cutler visited Philadelphia in the summer of
1787 and in his journal of July 13 he gives a
brief description of the State House, in which he
records that "the hall east of the aisle is em-
ployed for public business. The chamber over it

[54]

ORGANIZATION OF THE CONVENTION

is now occupied by the Continental Convention,
which is now sitting." John F. Watson, in his
Annals of Philadelphia^ confirms this statement
and gives the additional information that the
street pavement was covered with earth that the
labors of this august assembly might not be
disturbed by passing traffic.1

The first duty was to choose a presiding officer.
As president of the state in whose capitol the con-
vention was meeting, as well as by virtue of his
age and reputation, Franklin might have con-
sidered himself entitled to that honor. But when
the session opened on the morning of the twenty-
fifth with a majority of the states in attendance,
Robert Morris on behalf of the Pennsylvania
delegation formally proposed George Washing-
ton for president. Franklin himself was to have
made the nomination, but as the weather was
stormy he had not dared to venture out. No
other names were offered, and the convention
proceeded at once, but formally, to ballot upon
the nomination. Washington was declared to be
unanimously elected, and was formally conducted
to the chair by Robert Morris and John Rut-
ledge. With equal formality, but "in a very
emphatic manner," Washington thanked the con-
vention for the honor they had conferred upon
him and in apparently stilted terms "lamented

i Edition of 1857, voL I, p. 4Q&

THE FRAMING OF THE CONSTITUTION

his want of better qualifications" for the position.
He then proposed that a secretary should be
appointed.

The emoluments of the secretaryship were
hardly worthy of consideration and it must have
been the hope that it might lead to some future
political preferment that induced several candi-
dates to apply for the position. One of these
was Major William Jackson, who had seen active
service in the Revolution, had been secretary to
John Laurens on his mission to France in 1781,
and afterwards had been appointed assistant sec-
retary of war. Jackson very shrewdly did some
electioneering in advance by writing himself to
some of the more important delegates and by
getting his friends to write for him. The advan-
tage of this was seen when the appointment was
made. Jackson received the vote of five states,
while the only other formal nominee, Franklin's
nephew, Temple Franklin, obtained but two.

The next stage in the procedure was to read
the credentials of the deputies, and it was noticed
with some concern that those from Delaware
were prohibited from changing the principle of
the confederation of each state having an equal
vote. George Mason commented on this in a
letter to his son, and added that "no other State
. . . hath restrained its deputies on any subject/*
A committee of three was then elected by ballot

ORGANIZATION OF THE CONVENTION

to prepare standing orders and rules, and after
appointing a messenger and a doorkeeper the
convention adjourned until Monday.

On Monday two more states were represented
and the day was spent in considering the report
of the committee on rules. Aside from the ordi-
nary methods of parliamentary procedure, two
things were agreed upon that are essential in
understanding the working of the convention.
In the first place, the whole organization of the
convention was on the basis of state representa-
tion: each state having one vote, seven states
making a quorum, and a majority of states pres-
ent being competent to decide all questions,
though the deputies of a state by simply request-
ing it might postpone the vote upon any question
until the following day. This matter of state
representation had been the subject of informal
discussion during the days that elapsed while the
delegates present were waiting for a quorum.
The Pennsylvania delegates and Gouverneur
Morris in particular urged "that the large States
should unite in firmly refusing to the small
States an equal vote, as unreasonable, and as
enabling the small States to negative every good
system of Government." The Virginia delegates,
however, succeeded in stifling the project for fear
that it "might beget fatal altercations between
the large and small States."

[57]

THE FRAMING OF THE CONSTITUTION

In the second place, it was considered impor-
tant that the delegates should be protected from
criticism, and that their discussions should he
free from the pressure of public opinion. Ac-
cordingly it was decided not to permit calling
for the yeas and nays, and it was further
ordered that "no copy be taken of any entry on
the journal . . . without leave of the House,"
that "members only be permitted to inspect the
journal/' and that "nothing spoken in the House
be printed, or otherwise published or communi-
cated without leave." In other words, the ses-
sions were to be strictly secret. We have a con-
temporary account revealing the excessive care
taken to protect the convention from intrusion,
which states that "sentries are planted without
and within — to prevent any person from ap-
proaching near — who appear to be very alert in
the performance of their duty."

Two days and a part of the third day were
given up to the work of organization, and when
the main business of the convention was begun
on May 29, there were ten states represented with
some forty delegates in attendance. With the
exception of one adjournment of two days over
the Fourth of July and another of ten days, from
July 26 to August 6, to allow an important
committee to prepare its report, the convention
remained in continuous session (except for Sun-

[58]

ORGANIZATION OF THE CONVENTION

days) until September 17. There was one week
in the latter part of August when the time of
adjournment was set at four o'clock, but other-
wise the hours of the daily sessions seem to have
been from ten in the morning to three in the
afternoon.

So scrupulously was the order of secrecy
observed that it was not until many years after-
ward that anything definite was known of what
took place in the convention. In the period fol-
lowing the War of 1812, when important ques-
tions involving constitutional interpretation were
before the public, congress ordered to be printed
all of the acts and proceedings of the convention
that were in the possession of the government.
The result was disappointing. The minutes of
the secretary had not been well kept, and were
never written out as they should have been into
a complete journal. At best, they consisted only
of formal motions and of the votes by states. But
the seal of secrecy was broken and at various
times from that day to this there have come to
light the notes and records kept by differenl
members. Most of these are fragmentary.
There was one man, however, who recognized the
importance of this gathering, and appreciated
the interest that in all probability would attach
to its proceedings, and who determined to leave
as complete a record as was possible of all that

THE FRAMING OF THE CONSTITUTION

took place. That man was Madison, and he set
about his self-imposed task in his usual methodi-
cal way, that is best described in his own words :
"I chose a seat in front of the presiding member,
with the other members on my right and left
hand. In this favorable position for hearing all
that passed, I noted in terms legible and in abbre-
viations and marks intelligible to myself, what
was read from the Chair or spoken by the mem-
bers; and losing not a moment unnecessarily
between the adjournment and reassembling of
the Convention, I was enabled to write out my
daily notes during the session, or within a few
finishing days after its close." Madison later
told Governor Edward Coles that the labor of
writing out the debates, added to the confinement
to which his attendance in convention subjected
him, almost killed him, but that having under-
taken the task, he was determined to accomplish
it. He took his work so seriously that it seemed
to have stifled any sense of humor he is said to
have possessed and deprived his notes of any
enlivening qualities. But every student of the
subject is under the deepest obligation to him.
From his Debates, as supplemented by the other
very irregular notes, one is able to obtain a
fairly accurate and complete account of the
proceedings*

[60]

ORGANIZATION OF THE CONVENTION

When taking up the all-important work of the
convention in framing the constitution of the
United States, it is well to keep certain facts and
conditions continually in mind. In the first
place, while there were fifty-five delegates who
attended the convention at one time or another,
that is not the number of those who were usually
present. Some delegates were late in arriving in
Philadelphia, some left early, and many were
irregular in their attendance. From a careful
study of all available data, supported by a single
contemporary statement, it would seem that the
average attendance was little if any more than
thirty. Accordingly, as we use the terms at the
present time, this body was more like a large
committee than a convention*

In the next place, the importance of the occa-
sion was recognized by the delegates as well as by
the public generally. When they and their work
were the subject of prayer and preaching in the
churches, when they became the second toast at
banquets, following directly after "The United
States!'*, it is not surprising that the members of
the convention took their work seriously, and
that some of the delegates took themselves
seriously, too, Madison asserted in the conven-
tion, and Hamilton repeated after him, that they
"were now to decide for ever the fate of Repub-
lican Government." A few days later, Gouver-

[61]

THE FRAMING OF THE CONSTITUTION

neur Morris said that "the whole human race will
be affected by the proceedings of this Conven-
tion." And after the convention was over Wil-
son said: "After the lapse of six thousand years
since the creation of the world, America now
presents the first instance of a people assembled
to weigh deliberately and calmly, and to decide
leisurely and peaceably, upon the form of gov-
ernment by which they will bind themselves and
their posterity."2 Of course those who were the
most sincere in their desire and efforts for reform
would be the most constant in their attendance.
The convention accordingly was not merely a
small gathering, it was also imbued with an
unusually serious spirit.

In the third place, there is ample evidence to
show that there was not a little social intercourse
among the delegates, and it is inevitable that at
such times there should have been considerable
discussion of convention topics. At other times
there were semi-formal gatherings, that might
almost be termed caucuses, of particular parties
or groups, where plans were formulated and
agreements reached to support or oppose particu-
lar measures. It also happened that quite a
number of the delegates were staying at the
Indian Queen, a tavern on Fourth Street,

zMcMaster and Stone, Pemuyfaania and the Federal Constitu*
fan, p, 332.

ORGANIZATION OF THE CONVENTION

between Market and Chestnut, among whom
were Gorham, Strong, Hamilton, Madison,
Mason, Rutledge, and Charles Pinckney ; and the
mere fact that they had a "Hall" where they lived
by themselves is significant. To what extent
outside meetings and discussions were held, or
what part they took in the final results, will prob-
ably never be known. Their existence, however,
should be recognized. Particularly in the matter
of concessions and compromises extra-conven-
tional conferences were doubtless of distinct
service. Personal influence must have been an
important factor in the work of the conven-
tion; and then, as now, it could be exerted more
effectively outside than inside the formal sessions.
Finally, there is the paramount but evasive
element to which reference has just been made,
namely that of personal influence. Its greatest
effect must have been felt outside of the formal
sessions, but the extent of this can never be
known. It must have been also a considerable
element in the formal sessions of the convention,
and even here it is a difficult factor with which to
reckon. In describing the personality of the
various members of the different state delega-
tions an attempt was made to render somewhat
at least of the contemporary viewpoint, that is
to bring out the probable attitude of the dele-
gates toward any particular member* From the

[63]

THE FRAMING OF THE CONSTITUTION

fact that the votes were recorded by states it is
generally lost sight of that the votes of indi-
viduals were apparently known, at least in many
instances, Madison records the votes of particu-
lar individuals a number of different times,
apparently to show the men in support or in
opposition to questions of importance or in which
he was particularly interested.

It is a difficult, if not a dangerous thing, to
attempt to ascribe controlling importance or
influence to any particular men where the evi-
dence is so scanty. The parts which were taken
by various men in the debates of the convention
will be partially brought out in describing the
proceedings, but it seems worth while to notice
one man who took no part in the discussions but
whose influence is believed to have been impor-
tant. That man was George Washington, the
presiding officer of the convention. His com-
manding presence and the respect amounting
almost to awe which he inspired must have
carried weight, especially in so small a gathering
in the "long room" with the president sitting on
a raised platform. In confirmation of this belief
an amusing anecdote is told of an incident quite
early in the proceedings. One of the members
dropped a copy of the propositions which were
before the convention for consideration, and it
was picked up by another of the delegates and

[64]

ORGANIZATION OF THE CONVENTION

handed to General Washington. After the
debates of the day were over, just before putting
the question of adjournment, Washington arose
from his seat and reprimanded the member for
his carelessness. " *I must entreat Gentlemen to
be more careful, least our transactions get into
the News Papers, and disturb the public repose
by premature speculations. I know not whose
Paper it is, but there it is (throwing it down on
the table) , let him who owns it take it.' At the
same time he bowed, picked up his Hat, and
quitted the room with a dignity so severe that
every Person seemed alarmed. . . . It is some-
thing remarkable that no Person ever owned the
Paper." Another anecdote is told, but not on
so good authority, which indicates ;fchat Washing-
ton did not act with the impartiality which we
ascribe to the ordinary presiding officer: that he
allowed his sympathies to be shown; and that he
actually beamed his approval and frowned his
disapproval of sentiments that were offered.
Whether or not this were the case, Washington's
was evidently a name to conjure with and if
Washington's opinions were known they must
have carried weight.

And Washington's opinions were known. In
the interval that elapsed while the delegates were
gathering and the convention was organizing,
there had been much informal discussion of the

[66]

THE FRAMING OF THE CONSTITUTION

work to be done, of wliich this incident was
related by Gouverneur Morris. It happened one
morning in the convention hall, before a quorum
had arrived, that some of those present advocated
half measures as more likely to meet the approval
of the people than any thoroughgoing reform.
Washington interrupted the discussion with an
expression of opinion that established his position
beyond all question: "It is too probable that no
plan we propose will be adopted. Perhaps
another dreadful conflict is to be sustained. If
to please the people, we offer what we ourselves
disapprove, how can we afterwards defend our
work? Let us raise a standard to which the wise
and the honest can repair. The event is in the
hand of God." Furthermore, in the convention
itself, where tradition ascribes to Washington
the role of the non-participating presiding
officer, we know many of Washington's opinions.
Luther Martin mentions the fact that Washing-
ton evidently approved of what was being done
on certain occasions, and there are several refer-
ences to him in the debates. But what is more
important is that, in spite of his being in the
chair, he voted with the delegates from Virginia,
and Madison several times records Washington's
individual vote to show that he was on Madison's
side of the question. All of which indicate that
it was apparently well known how Washington

[661

ORGANIZATION OF THE CONVENTION

stood on almost every important matter before
the convention.

Intangible as it may be, impossible as it is to
estimate either its extent or its strength, the
mere existence of the personal element should be
recognized and kept in mind. Complications
arose and solutions were found that are explic-
able only on the assumption of the influence of
this indefinite factor.

[67]

CHAPTER V
THE VIRGINIA PLAN

Virginia had taken the lead in bringing about
the convention and it was generally felt to be
incumbent upon the deputation from that state
to suggest a plan of action. Her delegates
accordingly took advantage of the delay in form-
ing a quorum to meet together for two or three
hours every day, and they agreed upon a series
of resolutions to be presented for the considera-
tion of their fellow delegates. It was on May 29,
as soon as the work of organization was com-
pleted, that Governor Randolph, on behalf of the
Virginia delegation, presented this outline to the
convention. Internal evidence shows much of
Madison's handiwork in forming these resolu-
tions, but from the fact that they were presented
by Randolph they were commonly referred to as
the m^^^i^^^^ihey are more prop-
erly designated as

In thus opening the main business, Randolph
made an elaborate speech in which he enumerated

[68]

THE VIRGINIA PLAN

several of the most glaring deficiencies in the
existing government. He declared the confed-
eration unequal to meeting the crisis and pro-
posed as the basis of a remedy the fifteen resolu-
tions which made up the Virginia plan. While
the very first resolution stated that the articles
of confederation ought to be "corrected and en-
larged," the changes proposed were so radical
that it was really a new instrument of govern-
ment which was thus recommended. It was even
said that Randolph "candidly confessed that they
were not intended for a federal1 government — he
meant a strong consolidated union."

In the first place, provision was made for the
separation of the three branches of government —
legislative, executive, and judicial. In the second
place the legislature was to consist of two houses,
of which the first branch was to be elected by the
people of the several states, the second branch
was to be chosen by the first out of persons nomi-
nated by the state legislatures, and the voting in
both branches was to be proportional either to the
quotas of contribution or to the number of free
inhabitants, or to both. This legislature was to
have the legislative powers of the congress of the

i During the early part of the convention the term "federal"
was used to refer to a confederation as distinguished from a
national government. It was not until later that it received its
present significance,

[69]

THE FRAMING OF THE CONSTITUTION

confederation, with additional powers to cover
all cases where the separate states would be
incompetent, together with the right to negative
state laws infringing upon the "Articles of
Union" and to use force against any state failing
to fulfil its duty.

In the next place, the executive was to he
chosen hy the national legislature, and was to be
ineligible for a second term. The executive and
"a convenient number of the national judiciary"
were to constitute a council of revision with a
veto upon legislative acts that might, however, be
overruled by a subsequent vote of both houses.
Then there was to be a national judiciary, of a
supreme and inferior courts, chosen by the legis-
lature "to hold their offices during good be-
haviour," with jurisdiction in maritime questions,
in cases where foreigners were interested, or
which respected "the collection of the national
revenue, impeachments of any national officers,
and questions which may involve the national
peace and harmony."

Provision was also to be made for the admis-
sion of new states by less than a unanimous vote,
for the guarantee to each state of a republican
government and of its territory, for the amend-
ment of the articles of union without the consent
of the national legislature, and for the binding
of state officers by oath to support the articles of

[70]

THE VIRGINIA PLAN

union. Finally it was proposed that whatever
amendments might be prepared embodying these
changes should be submitted, after their approval
by congress, to conventions specially chosen for
the purpose by the people of each state.

As some time at the opening of the session
had been consumed in completing the details of
organization, and as Randolph had made a "long
and elaborate speech," by the time he had finished
the hour of adjournment was approaching. The
convention therefore decided that it would take
the Virginia plan into consideration on the next
day, and for that purpose it determined to resolve
itself into a committee of the whole house, as that
would permit of freer discussion and less formal
action.

Another plan was then presented to the con-
vention by Charles Pinckney of South Carolina.
It seems that he had prepared this plan before
coming to Philadelphia, and he evidently ex-
pected to deliver a speech in explanation of his
ideas. Owing to the lateness of the hour, how-
ever, he could do nothing more than lay the
document before the house. The effort of an
individual would carry little weight in compari-
son with the proposals of an important delegation
like Virginia's, and it is quite possible that the
convention regarded this action by one of its
youngest members as somewhat presumptuous.

[71]

THE FRAMING OF THE CONSTITUTION

At any rate, in what appears to have been a
purely formal way, Pinckney's plan was referred
to the committee of the whole and did not form
a subject of discussion at any time.

On May 30, in accordance with the vote of the
previous day, the convention resolved itself into
a committee of the whole and Nathaniel Gorham
of Massachusetts was placed in the chair. Daily
thereafter until the thirteenth of June, the same
procedure was followed. That is, for two weeks,
except for purely formal business the convention
continued in committee, and the only subject of
discussion was the Virginia plan as embodied in
the resolutions presented by Randolph.

The first of the resolutions was general or
introductory in its nature and provided "that the
Articles of Confederation ought to be so corrected
and enlarged, as to accomplish the objects pro-
posed by their institution." The objection being
made that this was incompatible with the changes
involved in the subsequent resolutions, Randolph
proposed to substitute three resolutions, of which
the first was "that a Union of the States merely
federal will not accomplish the objects proposed
by the Articles of Confederation," Again ob j ec-
tion was made that since the convention was
appointed to revise the confederation, to declare
it incapable of amendment was to put an end to
the .meeting at once, Accordingly the third sub-

THE VIRGINIA PLAN

stitute resolution was taken up, "that a national
government ought to be established consisting
of a supreme Legislative, Executive and Judi-
ciary/' Although the discussion which followed
turned "less on its general merits than on the
force and extent of the particular terms national
& supreme" the questions raised were of the first
importance, especially as to the powers of the
convention to consider anything beyond amend-
ments to the articles of confederation. The sub-
stitute resolution was finally adopted by a vote
which was fairly indicative of subsequent lines of
division: Massachusetts, Pennsylvania, Dela-
ware,, Virginia, North Carolina, and South Caro-
lina were in the affirmative, Connecticut was in
the negative, and New York's vote was divided,
Hamilton being in favor and Yates opposed.

With the arrival of additional delegates from
day to day the opponents to the Virginia plan
were increased. Lansing of New York sided
with Yates against Hamilton and cast the vote
of that state accordingly. New Jersey and
Maryland being represented were entitled to
vote and were found in the opposition. Dela-
ware also went over to the other side, which was
partly accounted for by the instructions to its
delegates, and partly by the fact that the com*
bination had become strong enough to make
opposition worth while. Of the new arrivals, the

[73]

THE FRAMING OF THE CONSTITUTION

position of Georgia alone was uncertain and its
delegates might be won over to either side.

It having been agreed to proceed upon lines
of somewhat radical reform, the questions with
regard to the nature and extent of the reorgani-
zation became important. As involving funda-
mental principles, the subject of the composition
of the legislature quite naturally provoked the
most discussion. That the legislature should
consist of two houses was readily and unani-
mously accepted. Mason voiced the general
opinion very well when he said a few days later
that "the mind of the people of America . . .
was unsettled as to some points : but ... In two
points he was sure it was well settled. 1. in an
attachment to Republican Government. 2. in
an attachment to more than one branch in the
Legislature," There is a tradition that Thomas
Jefferson some two years later, upon his return
from France, was protesting to Washington
against the establishment of two houses in the
legislature. The incident occurred at the break-
fast-table, and Washington asked: "Why did
you pour that coffee into your saucer?" "To cool
it," replied Jefferson. "Even so," said Wash-
ington, "we pour legislation into the senatorial
saucer to cool it."

On the all-important question of proportional
representation* the problem of the powers of

[74]

THE VIRGINIA PLAN

the delegates, notably of Delaware, was again
raised. But the convention proceeded with a fine
disregard for that, and the real fight was made
on the principle of proportional representation
in the lower house. The leaders of the opposition
in debate were Brearley and Paterson of New
Jersey, and when it came to a vote on this ques-
tion, the New Jersey delegation could only obtain
the support of New York and Delaware, with
Maryland divided. Seven states voted against
them. That the representation should be pro-
portional to population and that five slaves
should be counted as three freemen was adopted
with only New Jersey and Delaware in the nega-
tive. To apply the principle of proportional
representation to the upper house as well called
forth a stronger opposition. Maryland's vote
was no longer divided, and Connecticut too was
found in the negative. Still this was not enough
to defeat the proposal, and the resolution was
adopted by six states against five. The opposi-
tion had lost, but the minority was large enough
and strong enough to encourage further efforts,
and measures were concerted to forward their
yiews.

The method of choosing the members of the
legislature also caused considerable discussion.
Sherman, Gerry, and the two Pinckneys were
conspicuous in their support of election by the

[75]

THE FRAMING OF THE CONSTITUTION

state legislatures, while Wilson, Madison, and
Mason championed election by the people.
Through a vote to reconsider, the question of the
election of the lower house was twice the subject
of debate, and twice the committee voted by large
majorities in favor of an election by the people
of the several states. For the election of the
members of the upper house, the method pro-
posed in the Virginia plan was unsatisfactory,
that is, of an election by the lower house out of
nominations made by the state legislatures.
Where the idea originated of allowing the state
legislatures directly to make the choice, it would
be difficult to say. In one form or another it was
suggested by several speakers at different times
in the debate. And when for the second time it
was decided that the lower house should be elected
by the people, the sentiment in favor of electing
the other house by the state legislatures was so
strong that in spite of the opposition of Wilson
and Madison it was passed unanimously.

The other questions regarding the composition
of the legislature were of minor importance.
The term of office for the lower house was fixed
at three years and that for the upper house at
seven. There was no specification for the lower
house, but members of the upper house were to
be at least thirty years of age. Members of both
houses were to be paid out of the national treas-

[76]

THE VIRGINIA PLAN

ury and were declared ineligible to state or
national offices during their term of service and
for one year thereafter.

When it came to the question of the powers to
be vested in the legislature, there was a general
willingness to grant extensive powers, provided
they were carefully defined. The legislative
rights of the congress of the confederation were
accorded unanimously. In spite of the vague-
ness of the phrasing, the power to legislate in all
cases to which the separate states were incompe-
tent was granted by an overwhelming majority.
The right to negative state laws contravening the
articles of union was agreed to and laws in con-
travention of treaties were included, but the more
general power to negative any state law was
voted down. As doubts were expressed regard-
ing the use of force against a state, the matter
was postponed and apparently was never brought
up again.

Another subject to provoke discussion was-
that of the executive. There were several of the
delegates, conspicuous among whom was Ran-
dolph, who distrusted a single executive as savor-
ing of monarchy, and who favored an executive
body of three or more. But the convention
decided in favor of a single person. Then the
question of the method of election and of the term
of office became important. At the very outset

THE FRAMING OF THE CONSTITUTION

the difficulty arose that later developed into an
almost hopeless complication. If the executive
were to be chosen by the legislature, he must not
be eligible for re-election lest he should court
the favor of the legislature in order to secure for
himself another term. Accordingly the single
term of office should be long. But the possibility
of re-election was regarded as the best incentive
to faithful performance of duty, and if a short
term and re-eligibility were accepted, the choice
by the legislature was inadvisable. The only
solution was an election by some other body than
the legislature. Election by the people seems the
most natural method to which to turn, but such
a method was apparently regarded as visionary
and impracticable. Wilson was the only one to
speak strongly in favor of it, and he apologized
for it as seeming to be a theoretical rather than a
practical measure. The substitute he proposed
was a system of electors chosen by popular vote
in districts, but this was overwhelmingly defeated.
In lieu of anything better the original proposal
of the Virginia plan was adopted, that the execu-
tive should be chosen by the legislature. The
term was then fixed at seven years and he was
.made ineligible to re-election.

Whatever may have been the intention of its
sponsors, the result of the method proposed in
ihe Virginia plan would have been to establish

[78]

THE VIRGINIA PLAN

an executive who would have been the creature
or the dependent of the legislature. But the con-
vention had a decided preference for an inde-
pendent executive and carried that idea out as
far as it was possible at this stage of the proceed-
ings. For instance, in addition to the usual
executive powers and duties he was given the
power of appointment in all cases not otherwise
provided for, and in place of a council of revision
the executive alone was given the right of veto,
subject, however, to being overruled by a two-
thirds vote of both houses. And what is perhaps
the clearest indication of intention to make the
office an important one is that the executive was
rendered subject to impeachment.

That there should be a national judiciary was
readily accepted by all. Nor was there any con-
troversy over the jurisdiction of such courts as
might be established; indeed, the clauses in the
original resolution indicating the subjects of ju-
risdiction were unanimously struck out "in order
to leave full room for their organization." There
was also only a slight discussion over the appoint-
ment of the judges, which was finally settled
by vesting the appointment in the upper house of
the legislature. The most serious question was
that of the inferior courts. The difficulty lay
in the fact that they were regarded as an en-
croachment upon the rights of the individual

[79]

THE FRAMING OF THE CONSTITUTION

states. It was claimed that the state courts were
perfectly competent for the work required, and
that it would be quite sufficient to grant an
appeal from them to the national supreme court
The decision that was reached was characteristic
of much of the later work; at this early stage of
the proceedings, it might be regarded as pro-
phetic of the ultimate outcome of the convention's
labors. In other words, the matter was compro-
mised: inferior courts were not required, but the
national legislature was permitted to establish
them.

The remaining provisions of the Virginia plan
did not call forth much debate. The admission
of new states by less than a unanimous vote was
accepted. Instead of insuring to each state its
territory and a republican government, "a repub-
lican constitution, and its existing laws" were
guaranteed. The provision for future amend-
ments was adopted, except that the clause ren-
dering unnecessary the assent of the national
legislature was dropped. There was a little dis-
cussion as to the propriety or desirability of
referring the changes to be proposed by the con-
vention to popularly chosen conventions in each
state. Madison and Wilson favored it on funda-
mental grounds, King as a matter of expediency.
Sherman and Gerry opposed it, the former con-
sidering the state legislatures competent, the

[80]

THE VIRGINIA PLAN

latter distrusting the people. Wilson and Pinck-
ney suggested also ratification by less than the
whole number of states. The question of popular
ratification was once postponed, but the final
vote was in favor of it and it was so ordered.

The proceedings of the committee of the whole
had stretched over two weeks. In the course of
the debates there had been shown a remarkable
freedom of opinion. It was not to be expected
that there would be any sharp alignment of
parties at so early a stage of the work. Madison
and Wilson came forward prominently as the
leaders in advocating a strong national govern-
ment. They were heartily supported by King
and Gouverneur Morris, and in general also by
Randolph, the Pinckneys, Mason, and Gerry. It
is a point not to be overlooked that Washington
and Franklin unmistakably cast their influence
on this side.2 On the other side, were Sherman,
Paterson, Brearley, and Luther Martin, and
they were helped out by Bedford, Dickinson,
Butler, Ellsworth, Lansing, and Yates. As the

2 Luther Martin, in his report to the Maryland legislature,
stated: "The honorable Mr. Washington was then on lie floor, in
the same situation with the other members of the convention at
large, to oppose any system he thought injurious, or to propose
any alterations or amendments he thought beneficial To these
propositions, so reported by the committee, no opposition was
given by that illustrious personage, or by the President of the
State of Pennsylvania. They both appeared cordially to approve
them, and to give them their hearty concurrence."

[81]

THE FRAMING OF THE CONSTITUTION

discussion proceeded, it became more and more
evident that Connecticut, New York, New
Jersey, Delaware, and Maryland were tending to
rote together, in opposition to the other states
led by Virginia, Pennsylvania, and Massachu-
setts,

It is apparent that this is nearly the same divi-
sion which had manifested itself in the old con-
gress, notably in connection with the adoption of
the articles of confederation and the negotiations
over the treaty of peace. It was a division
between the states laying claim to western lands
and the states having no such claims. It was a
case of the small states against the large states,
the former quite naturally fearing that they
would lose their influence even if they were not
actually absorbed by the latter. It has already
been noticed that the question of proportional
representation had stirred the small states most
deeply, and that when they were outvoted, they
were only aroused to further efforts. For the
moment, however, it appeared as if the large
states or national government party had won the
day. On June 13, the committee of the whole
reported back to the convention with approval
the resolutions offered by Randolph as amended
in the points that have been noted.

[82]

THE VIRGINIA PLAN
NOTE

THE PlNCZNEY PiLAN

In view of the misconceptions that are still current
concerning the plan submitted to the convention by
Charles Pinckney, it seems advisable to offer a brief
explanation by way of warning. The document sent by
Pinckney to John Quincy Adams, when the latter was
preparing the journal of the federal convention for
publication, and commonly printed as the Pinckney
plan, was not a copy of the plan Pinckney submitted to
the convention. No authentic copy of the original plan
has ever been found. By critical methods it has been
possible to determine the probable content of the origi-
nal, and thus to identify two documents that have
recently come to light. The one is an outline and the
other a series of extracts from the Pinckney plan,
which were evidently made by James Wilson in prepara-
tion for some special committee work. From these two
documents it is possible to speak intelligently of what
the Pinckney plan contained. These documents with
further explanations may be found in the author's
Records of the Federal Convention*

[88 -J

CHAPTER VI
THE NEW JERSEY PLAN

The representatives of the smaller states, par-
ticularly those of New Jersey, had been increas-
ingly dissatisfied with the way things were going.
The climax was reached when proportional repre-
sentation was voted for the upper house as well
as for the lower. This action was taken on June
11, and it would seem as if it served to unite the
opposition. At any rate, when the convention
assembled on June 14, and was about to proceed
to the consideration of the report of the commit-
tee of the whole, that is of the amended Virginia
plan, Paterson requested an immediate adjourn-
ment to the next day. The reason given for this
request was that several of the deputations were
preparing a "purely federal" plan as distin-
guished from the one before the house and they
thought that they could have it ready by the
morrow. The request was at once granted.

On June 15, Paterson laid before the conven-
tion the plan which he and his supporters "wished
to be substituted in place of that proposed by Mr.
Randolph." The plan was frequently referred
to as the Paterson Resolutions, but Paterson was

[84]

THE NEW JERSEY PLAN

only the spokesman of his own state delegation^
which took the lead in this movement, so that the
resolutions are more properly designated as the
New Jersey Plan. But it should also be remem-
bered that the representatives of Connecticut,
New York, and Delaware, and at least Martin of
Maryland, made common cause with the New
Jersey delegates.

The plan thus presented was, as already inti-
mated, in sharp contrast to the Virginia plan.
It consisted of nine resolutions embodying
important changes, but they were only amend-
ments to the articles of confederation. In the
first place, additional powers were to be vested in
congress for raising a revenue by import duties,
stamp taxes, and postal charges, and for regu-
lating trade and commerce. In case the revenue
thus obtained was insufficient, requisitions might
be made upon the states in proportion to their
population, counting three-fifths of the slaves,
and collection might be enforced from delinquent
states. The acts of congress and treaties were
to "be the supreme law of the respective states,"
and the force of the union might be used against
individuals or states to compel their obedience.

In the next place, there was to be an executive,
presumably of several persons, elected by con-
gress, with powers similar to those granted in the
Virginia plan, except for the right of veto.

[85]

THE FRAMING OF THE CONSTITUTION

There was also to be a supreme tribunal, ap-
pointed by the executive, with original jurisdic-
tion in cases of impeachment, and with appellate
jurisdiction from state courts in maritime cases,
in cases in which foreigners were interested, or
which affected the construction of treaties or of
acts for the regulation of trade or the collection
of the federal revenue. The other changes pro-
posed were relatively unimportant and did not
enter into the subsequent debate.

After some discussion as to the best mode of
procedure, so as to insure fair consideration for
the new plan, it was agreed to follow the same
course that had been adopted for the Virginia
plan. It was accordingly referred to a committee
of the whole house. In order that the two plans
might be placed in due comparison, the amended
Virginia plan was recommitted at the same time.

For the better part of three days the conven-
tion continued in committee of the whole. The
debate was confined to a few of the leading men,
notably Paterson, Lansing, and Ellsworth favor-
ing the new plan, with Madison, Wilson, and
Randolph opposing it. The speakers did not go
into details, but contented themselves with con-
trasting the general principles of the two plans
under consideration. The supporters of the New
Jersey plan laid especial stress upon two points :
that it accorded with the powers of the conven-

[861

THE NEW JERSEY PLAN

tion, and that it was more likely to be adopted by
the country at large. Their opponents claimed
that while they had power to conclude nothing,
they had a right to propose anything, and they
insisted upon the inherent superiority of their
own plan.

In the course of this debate Hamilton deliv-
ered a speech to the preparation of which he had
evidently devoted considerable care, and which
proved to be the only important contribution he
made to the discussions of the convention. He
said that he had hitherto remained silent partly
out of respect to the opinions of others, and
partly because of the delicate situation in his own
delegation, as he differed radically from the sen-
timents of his two colleagues. He felt, however,
in the crisis that had been reached, that it was the
duty of every man to contribute his best efforts,
He accordingly expressed his disapproval of both
plans before the house, but of that of ISTew Jersey
in particular. He declared his belief in the neces-
sity of a strongly centralized government, and
frankly said that in his opinion "the British
government was the best in the world/' He then
read a sketch of a plan of government he had pre-
pared, not with an idea of proposing it to the
convention, but merely to present his own ideas
in concrete form.

The chief differences between his plan and that

187]

THE FRAMING OF THE CONSTITUTION

of Virginia were : that the executive and members
of the senate were to be elected by electors chosen
by the people, and were to serve during good be-
havior; that the executive was to have more
extensive powers, including an absolute veto ; and
that the governors of the various states were to
be appointed by the central government and were
to have a negative upon the legislation of their
respective states.

In later years, before the proceedings of the
convention were made public, Hamilton had to
defend himself against the charge of having
favored a monarchy as the best form of govern-
ment. The charge was based upon garbled
reports of this speech, and was made for political
purposes at a time when Hamilton was the most
formidable opponent of the Democratic-Repub-
lican party. Hamilton had not proposed a
monarchy. When some of his fellow delegates
were hesitating through fear of public opinion,
he expressed himself bravely and unequivocally
for a strong centralized government that should
be free from any danger of state interference.
Moreover, he did not believe that a correct esti-
mate of public opinion had been reached. He
thought that the people were beginning "to be
tired of an excess of democracy" and, he added,
"What even is the Virginia plan, but pork still
w ith a little change of the sauce?"

[88]

THE NEW JERSEY PLAN

Hamilton's plan did not provoke discussion
and it was not expected to. While the logic and
consistency of his position were recognized, his
ideas were too radical to meet with any general
approval. As Johnson expressed it, the "gentle-
man from New York . . . has been praised by
everybody, he has been supported by none."

It is altogether possible, if the New Jersey
plan had been presented to the convention at the
same time as the Virginia plan, that is on May
29, and if without discussion a choice had then
been made between the two, that the former
would have been selected. It would seem as if
the New Jersey plan more nearly represented
what most of the delegates supposed that they
were sent to do. But in the course of the two
weeks' discussions, many of the delegates had
become accustomed to what might well have
appeared to them at the outset as somewhat
radical ideas. Then, too, the changes that had
been made, insignificant as some of those changes
were, rendered the Virginia plan much more
acceptable. And so when the question was fairly
presented to them on June 19 of a choice between
the New Jersey plan and the Virginia plan as
amended, seven states voted for the latter, New
York, New Jersey, and Delaware voted for the
former, and the vote of Maryland was divided.
It is not without significance that this action was

[89]

THE FRAMING OF THE CONSTITUTION

taken immediately after an able speech by Madi-
son, the burden of whose plea was that the New
Jersey plan would not "provide a Government
that will remedy the evils felt by the states both
in their united and individual capacities.'*

CHAPTER VII
THE GREAT COMPROMISE

The committee of the whole made its second
report on June 19, again recommending the
amended Virginia plan, and the convention pro-
ceeded at once to a more detailed consideration of
the separate resolutions. The large-state men,
having accomplished their main purpose, were
now willing to make some concessions for the
sake of harmony. For example, the objection-
able word "national" was stricken out of the first
resolution by unanimous vote, and it was "as of
course" dropped out of each of the subsequent
resolutions in turn. As some of the delegates
were in favor of electing the members of the
lower house annually, a compromise was reached
between that and the term of three years pre-
viously established, and the final vote for two
years was unanimous. Although the same una-
nimity was not obtainable, other modifications
were made that rendered the plan less objection-
able: the term of the members of the upper house
was fixed at "six years, one third to go out
biennially"; payment of the members of the
legislature "out of the treasury of the United

[91]

THE FRAMING OF THE CONSTITUTION

States" was not insisted upon; and members of
both houses were rendered eligible to state offices,
though they were still declared ineligible to offices
of the United States.

All of these matters, however, were of minor
importance, and on the more essential questions
the majority were unyielding. On the other
hand, the small-state men had developed a more
united and more determined opposition. This
fact manifested itself unmistakably. In com-
inittee of the whole the vote in favor of two
branches for the legislature had been unanimous,
now the question found three states in opposition
with a fourth divided. Previously Charles
Pinckney had only been able to get three states
to support his motion for the election of the
members of the lower house by the state legisla-
tures, now there were four states in favor of it
with the vote of a fifth divided. Still the discus-
sions were conducted with reasonable equanimity,
though it was felt by all that the trial was yet to
come. When the question of proportional repre-
sentation had been under consideration in com-
mittee of the whole, Franklin observed that "till
this point . . . came before us, our debates were
carried on with great coolness and temper,"
And so it was now. For a few days everything
went comparatively smoothly. But it was only
the lull before the storm which every one could

[92]

THE GREAT COMPROMISE

see approaching, and the suspense was hard to
endure. If the storm could not be weathered, it
was better to have the end come quickly. So on
June 27, when Rutledge made the motion, the
convention voted unanimously to proceed at once
to the resolutions involving "the most funda-
mental points, the rules of suffrage in the two
branches."

With the convention impatient to meet the
issue, Luther Martin chose this most inopportune
time, and in a spell of hot weather, too, to deliver
a lengthy harangue. For more than three hours
he continued and, having exhausted his own
strength, to say nothing of the patience of his
audience, he announced to the dismay of all that
he would resume his discourse the next day.
Some months later when they became engaged
in a newspaper controversy over the adoption of
the constitution, Ellsworth scathingly wrote to
Martin: "You opened against them in a speech
which held during two days, and which might
have continued two months, but for those marks
of fatigue and disgust you saw strongly ex-
pressed on whichever side of the house you turned
your mortified eyes." Both Madison and Yates
complained of the difficulty of following what
Martin said, for he spoke "with much diffuseness
and considerable vehemence." His main con-
tention seems to have been that the general gov<

[93]

THE FRAMING^OF THE CONSTITUTION

ernment ought to be formed for the states rather
than for individuals, but his arguments would
have been more effective if they had been more
concisely and more opportunely presented.

Hamilton was greatly disappointed at the
poor figure he was making in the convention,
His ideas were too radical to meet with approval,
and his vote counted for nothing because it was
always overruled by his two colleagues. With all
his keen interest in the outcome of the conven-
tion, he felt that he himself was wasting time.
This feeling may have been strengthened by
Martin's harangue, for Hamilton left the con-
vention for New York the next day. He wrote
to Washington, however, that he would return
at any time if he could be of service, and he
appeared in Philadelphia two or three times
afterwards at irregular intervals.

When the convention finally got at the ques-
tion of proportional representation, nearly three
weeks were spent in reaching a conclusion.
More than once any satisfactory solution of the
difficulty seemed impossible, and the convention
was on the point of breaking up* Gouverneur
Morris afterwards said that "the fate of America
was suspended by a hair." Feeling ran high at
the very outset, and Franklin interposed with a
motion that "prayers imploring the assistance of
Heaven ... be held in this Assembly every

[94]

THE GREAT COMPROMISE

morning." It may seem surprising that such
a praiseworthy proposal, especially considering
the source from which it came, should meet with
any opposition, but apprehension was expressed
lest such a step at this late day might lead the
public to suspect that there were dissensions in
the convention. There is also a tradition that
Hamilton opposed the motion on the ground
that the convention was not in need of "foreign
aid." The real cause of any difficulty in the
matter was doubtless given by Williamson thai
"the convention had no funds." The incident
threatened to become embarrassing when the
question was avoided by adjournment.

On June 29, with Connecticut, New York*
New Jersey, and Delaware in the negative, and
with Maryland divided, the convention decided
"that the rule of suffrage in the first branch
ought not to be according to that established by
the Articles of Confederation." Then came the
question with regard to the upper house and it
took the form of a motion to give each state an
equal vote in that body. The delegates from
Connecticut were responsible for presenting the
question in that form, but it is doubtful whether
very much credit or originality should be ascribed
to them, as the idea had been frequently voiced
in the previous discussions. The debate which
followed was eager and eloquent. The Connecti-

[95]

THE FRAMING OF THE CONSTITUTION

cut men supported their proposal with modera-
tion but with great ability. Others on their
side, such as Bedford and Dayton, were not so
temperate. Wilson, Madison, and King spoke
strongly, and sometimes bitterly, in opposition.
Franklin, as usual, suggested a compromise. At
an early stage of the debate, the New Jersey
delegates proposed that the president should
write to New Hampshire "that the business
before the Convention is of such a nature as to
require the immediate attendance of the Gentle-
men appointed by that State/' It was supposed
that New Hampshire would side with the small
states, so that the purpose of the motion was
perfectly evident. But this was apparently
regarded as rather sharp practice, and was
promptly voted down.

Sunday intervened, and the first thing on
Monday morning, July 2, the question was put
on giving to each state an equal vote in the upper
house. The vote was a tie, five states being in
the affirmative, five in the negative, and one
divided. This unexpected result was achieved
through a combination of two circumstances:
Jenifer of Maryland was absent, thus enabling
Luther Martin to cast the vote of that state in
the affirmative, and Abraham Baldwin, by chang-
ing his vote to the affirmative, divided the vote
of Georgia. Luther Martin has stated his belief

[96]

THE GREAT COMPROMISE

that Baldwin did not change his vote because of
any change in his opinions, but because he was
convinced that the small states would withdraw
from the convention before they would yield on
this point. There is no other evidence to the
contrary and all of the circumstances bear Martin
out. Although a small state so far as numbers
of population were concerned, Georgia owned a
great expanse of western territory and having
been encouraged to look forward to becoming
one of the large states her delegates in conven-
tion were usually found voting on that side. In
this instance, it was of importance that Baldwin
was a former Connecticut man and so was doubt-
less in friendly understanding with the attitude
of the delegates from that state. Moreover, a
temporary sacrifice of opinion for the sake of
harmony was quite in keeping with his character.
If his action forced a compromise, as seems
probable, praise or blame is to be bestowed upon
him according to one's point of view.

The convention was now at a standstill.
After one or two suggestions were made that did
not seem to meet with any particular approval,
General Pinckney proposed a committee of one
from each state to try and devise a compromise.
Wilson and Madison strenuously opposed it,
and though there were several others who did not
think very much would come from it, the con*

[97]

THE FRAMING OF THE CONSTITUTION

vention generally approved and voted for the
proposal by a large majority. The members
were elected by ballot, and whether it was that
the small-state men worked together, or whether
the compromise spirit was so strong in the con-
vention that it found expression in the selection
of the committee, it is impossible to tell, but it is
only necessary to read the names of the commit-
tee to see that the small-state men had won their
fight. The committee consisted of Gerry, Ells-
worth, Yates, Paterson, Franklin, Bedford,
Martin, Mason, Davie, Rutledge, and Baldwin.
"That time might be given to the committee, and
to such as chose to attend to the celebration on the
anniversary of Independence, the Convention
adjourned till Thursday."

Little is known of what took place in the
committee. Yates recorded that the discussion
was largely a recapitulation of the arguments
advanced in convention and that as he himself
had not previously explained his position he took
this occasion to do so. He added that "these
remarks gave rise to a motion of Dr. Franklin,
which after some modification was agreed to, and
made the basis of the report of the committee."
Madison, also noted that the report was founded
on a motion by Franklin, and further stated that
Sherman made a proposal which was not agreed
to "that each State should have an equal vote in

[98]

THE GREAT COMPROMISE

the 2d branch; provided that no decision therein
should prevail unless the majority of States con-
curring should also comprize a majority of the
inhabitants of the United States."

On July 5, the compromise committee pre-
sented its report, recommending two proposi-
tions "on condition that both shall be generally
adopted." The substance of these proposals
was: 1. That in the first branch each state
should have one representative for every 40,000
inhabitants, counting three-fifths of the slaves,
and that money-bills should originate in the first
branch and should not be amended by the second
branch. 2. That in the second branch each
state should have an equal vote.

Immediately the debate broke forth again and
recriminations were indulged in. Madison, for
example, said that he was only restrained from
expressing his opinion of the report through
the respect he had for the members of the com-
mittee, and he intimated that he was willing to
accept whatever consequences might follow its
rejection. Gouverneur Morris was emphatic in
his disapproval and was understood to say that
the country must unite upon a reasonable and
just basis, and that "if persuasion does not unite
it, the sword will." Bedford apologized for the
warmth of his earlier expressions that if the small
states were driven to extremities they might find

[99]

THE FRAMING OF THE CONSTITUTION

some foreign power to take them by the hand,
biri found some excuse in statements like that of
Morris or like that of Gorham, who said that
Delaware must be annexed to Pennsylvania, and
New Jersey divided between Pennsylvania and
New York. Williamson was ready to hear the
report discussed but he thought the propositions
contained in it the most objectionable of any he
had yet heard.

The members from the small states generally
favored the plan although some of them, such
as Paterson, opposed it on the ground that it
conceded too much. Still it was noticeable that
the spirit of compromise was growing stronger.
As it did not seem possible or, perhaps, advisable
to vote upon the whole report at once, the differ-
ent parts were taken up separately. The first
part determining the ratio of representation was
referred to a special committee of five for the
purpose of fixing an absolute number of repre-
sentatives from each state in the first instance and
of providing for changes in the future. The
other points, with surprisingly little discussion
of the question of equal voting in the second
branch, were ordered to stand as parts of the
report, and the vote upon the whole was post-
poned until the special committee had made its
report.

On July 9, the special committee recom-

[100]

THE TTRE£T COMPROMISE

mended: that the first house of representatives
should consist of fifty-six memhers, of which
number New Hampshire was to have two,
Massachusetts seven, etc.; and that the legisla-
ture should be authorized to regulate future
representation upon the principles of wealth and
number of inhabitants. The latter part of this
report was promptly passed without debate and
by a large majority, but the first part, specifying
the number of members from the various states,
was unsatisfactory, so that after a short discus-
sion it was referred to a committee of a member
from each state. Then the house adjourned.

Promptly the next morning this committee of
eleven made its report, increasing the number of
representatives in the first legislature to sixty-
five. There may well have been some truth in
the charge that the numbers were "artfully les-
sened for the large States ... in order to pre-
vent the undue influence which the large States
will have in the government from being too
apparent," but the numbers assigned to the dif-
ferent states had doubtless been a matter of
compromise among the members of the com-
mittee, and several proposals in the convention to
vary these were defeated by large majorities.

The provision for future changes had
vaguely expressed and Randolph now propos
that, in order to ascertain the alterations

[101]

THE FRAMING OF THE CONSTITUTION

population and wealth of the several states, a
census should be taken at regular intervals and
representation arranged accordingly. William-
son suggested, and Randolph readily accepted
the modification, that the census should be taken
of the free white inhabitants and three-fifths "of
those of other descriptions." A very brief debate
followed upon the demand of the South Carolina
and Georgia delegates that blacks should be
counted equally with the whites, but a motion to
that effect was voted down by seven states
against three, Delaware only coming to the
support of the two southern states. Objection
was then made that the proposal was not in
accordance with the resolution previously agreed
to. That resolution had provided for future
representation according to wealth and popula-
tion, the present proposal left wealth out of
account except in so far as slaves were property.
Several voiced the opinion that the number of
people was the best way of measuring wealth and
that at any rate it was the only practicable rule
of apportioning representation. The convention
decided to proceed with the substitute of Ran-
dolph and Williamson but to divide the question.
It was unanimously agreed that representation
should be regulated according to the census. It
was agreed by a vote of six states to four that a
census of the "free inhabitants" should be taken,

[102]

THE GREAT COMPROMISE

but to include "three fifths of the inhabitants of
other description" was by a similar majority
voted down. There was no sharp division here
between slave and free states. On the first vote
Delaware and Maryland joined with South
Carolina and Georgia in the negative. In the
second vote, to include three-fifths of the slaves,
the states in favor of it were Connecticut, Vir-
ginia, North Carolina, and Georgia, There were
evidently motives at work that are not observ-
able on the surface, for the last vote appar-
ently was not to the liking of the convention.
Almost immediately afterwards the whole reso-
lution, in the form in which it then stood, was
rejected unanimously, and the convention found
itself without having advanced a single step.

The discussion of this point had occupied the
sessions of one day, July 11. The first thing on
the morning of Jiily 12, Gouverneur Morris pro-
posed to add to the clause, empowering the legis-
lature to vary the representation according to the
principles of wealth and number of inhabitants,
a proviso that taxation should be in proportion
to representation. There was a brief discussion,
the wording was modified to limit it to direct
taxation, and it was then adopted by the conven-
tion unanimously. The main difficulty was thus
solved and further details were quite easily
agreed upon. It is worthy of note that Gouver-

[103]

THE FRAMING OF THE CONSTITUTION

neur Morris later wished to have this provision
stricken out, although he himself had proposed
it, because it did not accord with his own opinions
and "he had only meant it as a bridge to assist us
over a certain gulph." Before the day was over
it had been decided that "representation ought
to be proportioned according to direct Taxation
and in order to ascertain the alteration . . .
which may be required from time to time . , .
that a Census be taken within six years . . . and
once within the term of every Ten years after-
wards of all the inhabitants of the United States
in the manner and according to the ratio recom-
mended by Congress in their resolution of April
18, 1783." The ratio recommended in 1783 was,
of course, the three-fifths ratio. An amendment
to have the blacks rated equally with the whites
was voted down by eight states against two.

The convention seems now to have been in a
better frame of mind. It may ha^e had nothing
to do with the outcome, but for over a week, that
is, ever since the appointment of the compromise
committee, the weather had been hot and on the
night of the twelfth it turned cool. At any rate,
the next two days were spent in discussing and
modifying details of this and other features of
the amended reports, and promptly on Monday
morning, July 16, the whole compromise was
adopted with Connecticut, New Jersey, Dela-

[104]

THE GREAT COMPROMISE

ware, Maryland, and North Carolina voting for
it, with Pennsylvania, Virginia, South Carolina,
and Georgia against it, and Massachusetts
divided. New York's vote was not included, as
Yates and Lansing had left the convention a few
days before, because of their dissatisfaction with
the way things were tending and because of their
belief that they were unwarranted in supporting
action taken in excess of their instructions.

This is the great compromise of the convention
and of the constitution. None other is to be
placed quite in comparison with it. There have
been many misunderstandings of it and many
false interpretations placed upon it, but with the
detailed sequence of events that has just been
given it seems as if the main points should be
clear. The important feature of the compromise
was that in the upper house of the legislature
each state should have an equal vote. The prin-
ciple of proportional representation in the lower
house was not a part of the compromise, although
the details for carrying out that principle were
involved. An absolute number of representa-
tives from the several states was agreed upon in
the formation of the first legislature, and the
future apportionment was to be made by the
legislature itself on the basis of numbers of popu-
lation, counting three-fifths of the slaves, and
direct taxation was to be in proportion to that

[105]

THE FRAMING OF THE CONSTITUTION

representation. The proviso that money-bills
should originate in the first branch and should
not be amended in the second branch was re-
garded by some delegates as of great importance,
but there were others who considered it of no
importance at all.

The credit for the great compromise has been
claimed by different men, and it has been ascribed
to others. Of more recent years, through the
weight of Bancroft's1 influence, the credit has
been very generally attributed to the Connecti-
cut delegation, and the compromise has been
quite commonly known as the "Connecticut
compromise." It is true that the delegates from
Connecticut were responsible for bringing for-
ward the formal question. Introduced by
Doctor Johnson, who spoke seldom but very
much to the point and was therefore accorded a
respectful hearing, the motion was made by Ells-
worth "that in the second branch . . . each State
shall have an equal vote." In the debate of the
following day this was referred to at least once
as the "Connecticut proposal" and once as the
"Connecticut motion." It is undoubtedly true
that the Connecticut delegates took an important
part in getting the compromise adopted. But
credit to the exclusion of others cannot be given

i History of the Formation of the Constitution (1881), voL If
chap. 9.

[106]

THE GREAT COMPROMISE

to any individual, nor to any delegation, nor to
any group of men other than to the small-state
men in general. The combination of two meth-
ods of representation in one legislature was
hinted at on May 30, the very first day that the
Virginia plan was under discussion. On the day
following, it was definitely and specifically sug-
gested, and from then on it was frequently re-
ferred to until its final embodiment in the great
compromise. With proportional popular repre-
sentation established for one house, equal state
representation for the other was inevitable, both
from the ideas of representation that were cur-
rent at the time and from the division of opinions
in the convention.

The counting of three-fifths of the slaves, the
so-called "three-fifths rule," has very generally
been referred to as a compromise and as one of
the important compromises of the convention.
This is certainly not the case. Attention has
already been called to the fact that this ratio was
embodied by the congress of the confederation in
the revenue amendment of 1783, that the com-
mittee of the whole by a vote of nine states to two
had added it as an amendment to the Virginia
plan, that it was embodied in the New Jersey
plan, and that when it was incorporated in the
great compromise it was described as "the ratio
recommended by Congress in their resolution of

[107]

THE FRAMING OF THE CONSTITUTION

April 18, 1783." Indeed, one finds references in
contemporary writings to the "Federal ratio",
as if it were well understood what was meant by
that term. A few months later, in the Massa-
chusetts state convention, Rufus King very aptly
said that "this rule . . . was adopted, because it
was the language of all America." In reality
the three-fifths rule was a mere incident in
that part of the great compromise which declared
that "representation ought to be proportioned
according to direct Taxation."

In view of subsequent developments in this
country, it is not surprising that historical
writers have very generally over-emphasized the
differing interests of north and south in the con-
vention. A correct understanding of the situa-
tion, however, can only be obtained if it is
realized that in the first stages of the discussion
of proportional representation the conflicting
interests of east and west were more important
than those of slave and free states. In colonial
times, as population increased and settlement
extended into the back country, the conservative
moneyed interests of the coast insisted upon
retaining the control of government in their own
hands and refused to grant to the interior coun-
ties the share in government to which their
numbers of population entitled them. This was
seen in its most obvious form in the inequality of

[108]

THE GREAT COMPROMISE

representation in the legislature. Notably was
this the case in Pennsylvania, Virginia, and the
Carolinas. And this inequality was maintained
in the state governments that were formed after
the outbreak of the Revolution. In the federal
convention, the same interests demanded similar
restrictions. Pennsylvania's method of dealing
with the frontier counties was cited with appro-
val. As it had worked well there for the older
portions of the state to keep the power in their
own hands, so now in the United States, it was
insisted, new states ought not to be admitted on
an equal footing with the old states. Gouver-
neur Morris was the champion of the commercial
and propertied interests, and when the great
compromise was under discussion he declared in
favor of considering property as well as the
number of inhabitants in apportioning represen-
tatives. In explanation of his position he stated
that he had in mind the "range of new States
which would soon be formed in the west," and
"he thought the rule of representation ought to
be so fixed as to secure to the Atlantic States a
prevalence in the National Councils." Morris
was also chairman of the first committee of five
appointed to determine the numbers of repre-
sentatives from the existing states in the first
instance and to provide for future apportion-
ment. As a member of the committee, Gorham

[109]

THE FRAMING OF THE CONSTITUTION

frankly explained that one of the objects in their
report which the committee had had in view was
to give to the Atlantic States the power of
"dealing out the right of Representation in safe
proportions to the Western States." This por-
tion of the report was at first adopted, but was
afterwards disregarded in the readjustment by
which both representation and direct taxation
were to be apportioned according to numbers of
population.

In 1787, slavery was not the important ques-
tion, it might be said that it was not the moral
question that it later became. The proceedings
of the federal convention did not become known
until the slavery question had grown into the
paramount issue of the day. Men naturally
were eager to know what the f ramers of the con-
stitution had said and done upon this all-absorb-
ing topic. This led to an overemphasis of the
slavery question in the convention that has per-
sisted to the present day. As a matter of fact,
there was c^EgjaJojzgfe little jiaidjm the sufejact
in the congestion. Madison was one of the very
few men who seemed to appreciate the real divi-
sion of interests in this country. It is significant
that in the debate on proportional representation,
he felt it necessary to warn the convention that it
was not the size of the states but that "the great
danger to our general government is the great

[110]

THE GREAT COMPROMISE

southern and northern interests of the continent,
being opposed to each other/*

Again the ever-recurring interest in the ques-
tion of the popular election of senators has led
to misinterpretation of things that were said and
done in the convention. In the proceedings of
the committee of the whole, a momentary inter-
est had been aroused over the election of the
members of the upper house by the state legisla-
tures. A good many years afterward, Madison
went over his notes very carefully with the idea
of their posthumous publication and at that
point, in. view of subsequent developments, he
tried to make sure that there should be no mis-
understanding by inserting the following expla-
nation : "It will throw light on this discussion, to
remark that an election by the State Legislatures
involved a surrender of the principle insisted on
by the large States and dreaded by the small
ones, namely that of a proportional representa-
tion in the Senate." To make assurance doubly
sure, when the subject came up again in the
debate leading to the great compromise, Madison
inserted another note: "It must be kept in view
that the largest States particularly Pennsylvania
and Virginia always considered the choice of the
second Branch by the State Legislatures as
opposed to a proportional Representation to
which they were attached as a fundamental piin-

[1111

THE S-KAMING OP THE CONSTITUTION

ciple of just Government." It cannot be too
strongly insisted that whatever opinions were
expressed in debate, and whatever arguments
were advanced for or against the election of the
members of the upper house by the state legisla-
tures— and all sorts of proposals of other
methods were made and all sorts of opinions were
expressed — they should be interpreted with
reference to the one question at issue, that of
proportional representation. It might also be
noted that from the moment of the adoption of
the great compromise the method of electing
the members of the upper house was never
questioned in the convention*

[112]

CHAPTER VIII
AFTER THE COMPROMISE

When the New Jersey plan was presented to
the convention and Paterson had argued against
the power of the convention to consider such a
plan as that of Virginia, Pinckney had incisively
remarked: "Give New Jersey an equal vote, and
she will dismiss her scruples, and concur in the
National system." This proved now to be true.

eq^i vote m mly 01^ feraa^A of the
but it was enough to reeouelte Hies* i® tte
plany and they became wanner and warmer advo-
cates of a strong national government. Not so
with the large states, their plans were so dis-
arranged by the loss of proportional representa-
tion in the upper house, that as soon as the
compromise was adopted on July 16, they asked
for an adjournment until the next day to give
them an opportunity to consider what was best
to be done. After a little show of feeling and
some suggestions that it would be better to
adjourn sine die, the request was agreed to.

On the next morning, Madison reports, before
the regular convention hour, a number of the
members from the large states met together for

[113]

THE FRAMING OF THE CONSTITUTION

consultation, and some members from the small
states were also present. It was evident at once
that opinions differed as to the consequences
involved in the adoption of the compromise.
Some regarded it as fatal to the establishment
of a strong government and favored extreme
measures, even to the point of recommending a
separate plan. Others seemed inclined to yield
and to favor a concurrence in whatever act might
be agreed upon by the convention as a body.
Apparently the latter view prevailed, and Madi-
son adds that the smaller states were probably
satisfied "that they had nothing to apprehend
from a union of the larger in any plan whatever
against the equality of votes in the second
branch." The work was accordingly allowed to
proceed.

Many rumors were current as to what was
being done in the convention, and it is altogether
probable that something had leaked out concern-
ing the serious differences of opinion that threat-
ened to disrupt the assembly. If so, it was
important to allay all fears. Accordingly a day
or two after the compromise was adopted an item
appeared in one of the local papers. It was prob-
ably inspired and it was copied into several other
journals:

"So great is the unanimity, we hear, that prevails in
the Convention, upon all great federal subjects, that it

[114]

AFTER THE COMPROMISE

has been proposed to call the room in which they
assemble — Unanimity Hall."

The next ten days were devoted to a considera-
tion of the remaining resolutions of the Virginia
plan. Quite the most important subject of dis-
cussion was that of the executive, especially with
reference to the method of his election and to his
term of office. Upon these questions the con-
vention found itself in the same difficulties that
had troubled the committee of the whole. If the
executive were to be chosen by the legislature,
he must not be eligible for re-election and his
one term should therefore be a comparatively
long term. But the possibility of re-election was
a great incentive and if re-eligible, the executive's
term of office should be short and he should not
be chosen by the legislature. In this complica-
tion the delegates became hopelessly involved,
and in the endeavor to extricate themselves every
conceivable suggestion was made. Appointment
by state executives, direct election by the people,
and a system of electors who might be chosen by
the people, by the state legislatures, or even from
the national legislature by lot, were among the
methods proposed.

Wilson noted with considerable satisfaction
"that the idea was gaining ground, of an election
mediately or immediately by the people/5
Among those who supported a popular election,

[115]

THE FRAMING OF THE CONSTITUTION

direct or indirect, were Madison, Gouver-
neur Morris, King, Paterson, and Dickinson.
Opposed to them were Randolph, Charles Pinck-
ney, Sherman, Rutledge, Mason, Gerry, and
Williamson. On a question for direct popular
election taken early in the discussion only Penn-
sylvania voted "aye." The opinion of the con-
vention on this subject seems to have been voiced
in one respect by Mason when he said that "it
would be as unnatural to refer the choice of a
proper character for chief Magistrate to the
people, as it would to refer a trial of colours to
a blind man. The extent of the Country renders
it impossible that the people can have the requi-
site capacity to judge of the respective preten-
sions of the Candidates." The other serious
objection was that the people would always vote
for a man of their own state, which would give
the larger states an advantage over the smaller
that would probably be decisive of the election.
To obviate the latter objection it was suggested
that each man should vote for two or three can-
didates, only one of whom should be of his own
state. Another proposal was that the people of
each state should name one man, and from the
thirteen names thus selected, the national legisla-
ture should choose the executive. Both of these
suggestions met with more or less approval, but
for the time being they came to naught.

[116]

AFTER THE COMPROMISE

At one time the convention voted down a pro-
posal for a system of electors to be chosen by the
state legislatures, but two days later, on the sug-
gestion that the number of electors in each state
might be proportional, it was accepted. It was
agreed that New Hampshire, Rhode Island,
Delaware, and Georgia, should have one elector,
Massachusetts, Pennsylvania, and Virginia each
three, and the remaining states should each have
two. After thinking it over for a few days, this
plan was given up on the ground that to come
together for the single purpose of electing a chief
magistrate would be expensive and the best men
in the distant states would not think it worth
while to serve.

In a similar way every possible length of term
was suggested. Four, six, seven, eight, eleven,
and fifteen years were the more serious proposals.
The last term, however, called forth a suggestion
of twenty years as being "the medium life of
princes." And yet "during good behavior"
found its advocates, and four states actually
voted in favor of a motion to that effect, rather
with an idea of frightening "those attached to a
dependence of the Executive on the Legisla-
ture" than from any preference for that tenure.

No wonder that Gerry should say that "We
seem to be entirely at a loss," nor that Madison
should add that "there are objections against

[117]

THE FRAMING OF THE CONSTITUTION

every mode that has been, or perhaps can be pro-
posed." And it is not so surprising that, after
twice reconsidering the whole question, the con-
vention should finally come back to the method
in the report of the committee of the whole: an
election by the national legislature, for the term
of seven years, with ineligibility to re-election.

The other points relating to the executive were
passed without debate, save in the matter of
impeachment. King, Gouverneur Morris, and
Charles Pinckney argued against it, unless the
executive were to be appointed for life or were to
be given too extensive powers. On the other side
were Wilson, Madison, Mason, Gerry, Ran-
dolph, and Franklin. The latter arguments were
so strong that Gouverneur Morris declared him-
self to be convinced and then made a strong plea
for the necessity of impeachments. When the
vote was taken only Massachusetts and South
Carolina were in the negative.

In all these debates over the executive, while
there was the greatest diversity of opinion, lines
of division do not seem to have been clearly
drawn. Members expressed simply their indi-
vidual and personal points of view. Gouverneur
Morris, for example, as we have seen, actually
argued on both sides of one question. At the
same time it is noticeable that the large-state men
in general naturally favored a system which

[118]

AFTER THE COMPROMISE

would insure to the large states a greater influ-
ence or a greater share in the election. This
tended to bring them to the support of a popular
election and to oppose an election by the legis-
lature.

After the executive, the next most difficult
subject was that of the judiciary, and here also
the method of selection was now the chief
point in dispute. Madison, Wilson, and Gorham
strenuously opposed the method previously
agreed upon, that is, of a choice by the second
branch of the legislature. They proposed an
appointment by the executive, and when that was
defeated they moved for an appointment by the
executive with the "advice and consent of the
second branch." This was lost on a tie vote.
Since obtaining equal representation in the upper
house, the small states were more than ever in
favor of retaining the appointment by that body,
and they finally succeeded in doing so but only
by the narrow margin of this tie vote. There
was no difference of opinion as to the jurisdic-
tion of the national courts, and the convention
was content to declare in general terms that it
should extend "to all cases arising under the
national laws and to such other questions as may
involve the national peace and harmony."

A proposal to unite the judiciary with the
executive in the exercise of the veto power was

[119]

THE FRAMING OF THE CONSTITUTION

again rejected and as before one of the chief
arguments against it was that it would give the
judiciary two opportunities to pass upon the
constitutionality of a law. Closely connected
with this subject was the question of the negative
upon state laws vested in the national legislature.
There was serious objection to any such power,
especially as it was felt to be unnecessary,
because the national judiciary would have the
right to declare invalid such state laws as tres-
passed upon the fields of national legislation.
The negative upon state laws was therefore
taken away by a vote in which Massachusetts,
Virginia, and North Carolina were the only
states in its favor. It was Luther Martin who
then proposed a modified form of one of the reso-
lutions of the New Jersey plan which was unani-
mously accepted. The resolution as Martin
proposed it and as it was first adopted was "that
the legislative acts of the United States . . .
shall be the supreme law of the respective States
. . . and that the Judiciaries of the several States
shall be bound thereby in their decisions, any
thing in the respective laws of the individual
States to the contrary notwithstanding." Con-
trary to Martin's intentions, that resolution with
a single significant change developed into one
of the all-important articles of the constitution
strengthening the national government.

[120]

AFTER THE COMPROMISE

On the question of referring the new consti-
tution to popularly elected conventions in each
state, the sentiment in favor of it was much
stronger than before. Randolph, Gorham, King,
and Williamson argued for it more on the
ground of expediency, while Madison, Gouver-
neur Morris, and Mason supported it as funda-
mental in the establishment of a new government.
Madison "considered the difference between a
system founded on the Legislatures only, and
one founded on the people, to be the true differ-
ence between a league or treaty, and a Constitu-
tion" Ellsworth, Gerry, and Paterson favored
ratification by the state legislatures, but their
motion to that effect only obtained three votes in
its support, and the original proposal was then
reaffirmed by an all but unanimous vote. Again
the idea was suggested of the constitution being
ratified by less than the whole number of states
and of its being in force between the states so
ratifying.

The only other item of interest in these pro-
ceedings was that relating to members of the
upper house. When the great compromise was
adopted, many of the delegates had supposed
that the voting in that house would be by states,
but since the main point of equality of represen-
tation had been gained, there was little objection
to allowing the members to vote individually.

[121]

THE FRAMING OF THE CONSTITUTION

Three members from each state threatened to
make the ultimate number of members in the
second branch too large, and after it was decided
in favor of two members, it was readily agreed
that they should vote per capita, Maryland only
being found in the negative.

The fifteen resolutions of the original Virginia
plan had now been increased to twenty-three.
With a few exceptions, chiefly in the provisions
of the great compromise, these resolutions were
of a general character and a working constitution
must be a detailed instrument. It was perfectly
evident that the convention itself could not pre-
pare such a document without great loss of time
and energy. From occasional references in
debate, and from the fact that some of the dele-
gates left Philadelphia several days earlier, it
would seem that the method of procedure to be
followed was generally understood. At all events,
when the proper time arrived, without any hesi-
tation it was agreed to refer the proceedings of
the convention to a committee of five who should
prepare and report a detailed constitution con-
formable thereto. The committee that was
elected consisted of Rutledge of South Carolina,
Randolph of Virginia, Gorham of Massachusetts,
Ellsworth of Connecticut, and Wilson of Penn-
sylvania. On July 26 the convention adjourned
and the committee was given until August 6 to

AFTER THE COMPROMISE

prepare its report* Shortly before adjournment
the committee was instructed to receive a clause
requiring qualifications of property and citizen-
ship in the executive, judiciary, and legislative
officers. At the very last moment, in what
appeared to be a purely formal way, the com-
mittee of the whole was discharged from acting
on the propositions submitted by Charles Pinek-
ney on May 29, and they were now referred to
the committee of detail. Similar action was
taken with regard to the resolutions presented by
Paterson on June 15.

Four days before the adjournment was taken
the delegates from New Hampshire arrived. It
was too late for them to take any important part
in the proceedings, but if we may judge from
their private correspondence they approved of
what had been done.

[128]

CHAPTER IX
THE COMMITTEE OF DETAIL

Rutledge, Randolph, Gorham, Ellsworth, and
Wilson formed a strong combination. It was
well that this was so, for the task before the com-
mittee of detail was not an easy one, and only
ten days had been allowed in which to complete
it. Inasmuch as its report was a definite and an
important stage in the framing of the constitu-
tion, the significance of the work of the commit-
tee of detail is self-evident. Little has been
written in the past, for little has been known of
how the committee set about the preparation of
its report. Within a very few years, however,
certain documents have come to light which
reveal some of the things that were done and
permit a shrewd guess as to others.

It must remain more or less a matter of con-
jecture, but it seems probable that one of the
first steps taken was to have some one of their
number prepare a preliminary sketch of a con-
stitution as a working basis upon which the com-
mittee could proceed. Doubtless this was done
only after discussion by the whole committee,
when certain general principles and ideas were

[1*4]

THE COMMITTEE OF DETAIL

determined. In view of the part he had taken,
first in presenting and at various times in ex-
pounding the Virginia plan, Randolph was a
very natural person to whom this duty should
be assigned. At any rate, we have in Randolph's
handwriting what is evidently the first draft of
a constitution based specifically upon the resolu-
tions the convention had adopted. Sometimes
this draft goes into considerable detail, but at
other times it only suggests what might be done,
and it contains introductory and concluding
explanations, with occasional running comments
in the text. This draft was subjected to exten-
sive and occasionally to radical changes, some of
which were made in the writing of Randolph, but
others were by the hand of Rutledge. The infer*
ence is that the draft was submitted to the com-
mittee, and after discussion and criticism, the
modifications agreed upon were inserted by the
chairman. As an indication that the document
was one of a series, practically every item in it
has been checked off with a pen.

It is quite possible that James Wilson had been,
working independently at the same time and in*
a similar way, but the next stage of which we
have record shows documents in the handwriting
of Wilson, presenting portions of the Randolph
draft further developed, together with extracts,
carefully taken from the New Jersey plan and

[126]

THE FRAMING OF THE CONSTITUTION

extracts from the plan of Charles Pinckney.
These disjointed parts were then apparently
worked over by Wilson and fitted together into
a single harmonious document. This may have
been done alone or with the assistance of the rest
of the committee.

If it is realized that each of the processes which
has been described in a few words represented no
small amount of thought and labor, and that the
ability of the whole committee had evidently
been brought to bear at least upon the more diffi-
cult points, it will be appreciated that the Wilson
compilation represented a fairly advanced stage
of the committee's work. Certainly it seems to
have been satisfactory to the other members, for
it was gone over by them with the utmost
care, not for the purpose of making important
changes, but to see that the phrasing of the vari-
ous clauses accorded with what they wished to
convey. As in the case of the Randolph draft
most of the changes made were in the handwrit-
ing of Rutledge, the chairman. This represented
the last step in the preparation of the report,
except that, as the document was to be printed,
a fair copy was doubtless made before it was
turned over to the printer.

The report of the committee of detail, as it was
printed for the use of the members of the con-
covered seven folio pages with wide

[M8]

THE COMMITTEE OF DETAIL

margins left for making notes. Upon examina-
tion it was found to consist of a preamble and
twenty-three articles embodying divisions into
forty-three sections and a still larger number of
paragraphs. The first two articles were intro-
ductory, and the next seven articles, three-fifths
of the whole document, were devoted to congress,
its composition and powers. A single article,
only a small fraction of the space given to con-
gress, covered the executive, and another of equal
length was sufficient for the judiciary. Two
short articles placed certain prohibitions upon
the states, and three provided for interstate
privileges. The remaining seven articles were
devoted to the admission of new states, the guar-
antee to each state of a republican government,
the provision for future amendments, the taking
of oaths to support the constitution, the ratifica-
tion of the new instrument and the inauguration
of the government under it.

In tracing the work of the committee through
its various stages a number of interesting and
important things are noticeable. The first of
these is that the document which proved to be of
the most service to the committee was the articles
of confederation. It has already been pointed
out that the new government in process of con-
struction was radically different from the con-
federation, but that it arose from the attempt to

[187]

THE FRAMING OF THE CONSTITUTION

remedy the defects of the old. That Is signifi-
cantly brought out here. The provisions for the
powers of congress, the prohibitions placed upon
state action, and the insurance of interstate
privileges were taken directly from the articles
of confederation, and sometimes word for word.
A few important powers were added, but the
significant change is the attempt to infuse into
the new system sufficient energy and power to
carry out the functions that had been granted to
the old. With the qualification just stated, it is
not too much to say that the articles of confedera-
tion were at the basis of the new constitution. In
less important matters also, the articles of con-
federation were drawn upon, as in framing the
introductory clauses, and in providing a method
of procedure in settling disputes between the
states*

In the second place, after the articles of con-
federation the next most useful documents were
the New Jersey and Pinckney plans. These
were used rather differently than the articles of
confederation and more for the purpose of assist-
ance in wording various sections and clauses.
And finally, the state constitutions were continu-
ally drawn upon. Some of this was conscious,
and some of it was unconscious borrowing. Just
as in the convention the delegates were apt to
propose measures with which they were familiar

[128]

THE COMMITTEE OF DETAIL

in their own states, so the committee drew upon
their own experience, or in some cases copied
specific clauses from a particular state constitu-
tion. The phraseology of the various state
constitutions is so similar that it would be a
wearisome and unprofitable task to attempt to
determine the indebtedness of the committee to
the different ones, but it is of interest that the
New York constitution of 1777 seems to have
been used more extensively than any other. In
preparing his plan, Charles Pinckney had made
extensive use of the articles of confederation and
of the state constitutions, but of the constitution
of New York in particular. Partly through the
medium of his plan and partly through the
document itself, the New York constitution was
of great service, and especially in connection with
the executive. Although the executive was to be
called "The President of the United States" and
was to be given the title of "His Excellency/' the
office was modelled on that of the state governors.
In the specification of his powers and duties, and
in the provision that in case of his death or
removal he should be succeeded by the president
of the senate, the committee followed closely the
procedure in New York.

The importance of the legislature and its
reorganization was indicated by the relative
amount of space devoted to it. Yet a large part

[129]

THE FRAMING OF THE CONSTITUTION

v"£ this was given up to the specification of
details, required by the general resolutions of the
convention, and to the internal organization of
^he houses. The provisions for the latter were
taken from the familiar procedure of the indi-
vidual states and were of relatively little impor-
tance. Such were the provisions for deciding
upon elections, for punishing members, and for
choosing their presiding and other officers.

In general the committee made their work
conform to the resolutions adopted by the con-
vention, but room was left for the exercise of
judgment, as in detailing the powers of congress
and in defining the jurisdiction of the supreme
court. In some instances also, it was inevitable
that they should go beyond their instructions.
It was found as impossible for the committee as
it had been for the convention to agree upon
qualifications for ip^aibership in the two houses
of the legislature. Accordingly citizenship and
residence only were inserted and property quali-
fications were left for the legislature itself to
determine. In the same way, being unable to
adopt a satisfactory uniform suffrage qualifica-
tion, it was wisely left the same as might be pro*
vided in each state for the election of the populav
branch of its legislature. The trial of impeacl:^
ments was once more placed with the supreme
court, but a practice with which the states were

[ISO]

THE COMMITTEE OF DETAIL

already familiar was adopted in granting to the
house of representatives the sole power of im-
peachment and by limiting the judgment in case
of conviction to removal from office and to future
disqualification for office. In specifying the ju-
risdiction of the supreme court the committee took
the liberty of inserting that all criminal trials
should be by jury. In place of allowing congress
to appoint ambassadors, to make treaties and to
settle disputes between the states, as had been the
case under the confederation, those functions
were now transferred to the senate, the body
which most nearly corresponded to the old con-
gress as the representative of the states, and the
disputes between states to be settled in this way
were limited to those regarding territory or
jurisdiction.

Thus far little is to be expressed beyond
praise for the committee's work, but certain liber-
ties were taken which demanded explanation.
The convention had agreed that the president
should be paid by the national government, it
was understood that this would be done with the
lower house and with the upper house the point
had been left unsettled. The committee provided
that the members of both houses should be paid
by the state in which they were chosen, and from
the clause on the payment of the president "out of
the public treasury" was dropped. Under the

[131]

THE FRAMING OF THE CONSTITUTION

provision for the admission of new states,
although the resolutions did not warrant it, the
committee stipulated that these states should "be
admitted on the same terms with the origins1
States." In guaranteeing protection to each
state "against domestic violence,'5 the committee
limited this to cases where application was made
by the state legislature. Further instances, the
most conspicuous and the most important of all,
were apparently due to the influence of the two
southerners on the committee, Rutledge and
Randolph: Provisions were added that there
should be no interference with the slave trade,
that no export tax should be laid, and that navi-
gation acts should require a two-thirds vote of
both houses.

The importance of the work of the committee
of detail was generally appreciated, and it was a
piece of work that was well done. Great credit
was given to the members of the committee, and
it is not surprising that they should take pride in
it, nor that in later years it should be still more
greatly magnified in their eyes. Ellsworth evi-
dently had it in mind shortly after Washington's
death, when his grandson quoted hi™ to the effect
that "Washington's influence while in the Con-
vention was not very great, at least not much as
to the forming of the present Constitution of the
United States in 1787, which Judge Ellsworth

[182]

THE COMMITTEE OF DETAIL

said was drawn by himself and five others." For
the present purpose, however, it is sufficient to
regard the report of the committee as marking a
distinct stage in the development of the con-
stitution.

[138]

CHAPTER X
DETAILS AND COMPROMISES

It was on Monday, August 6, that the conven-
tion reassembled to receive the report of the com-
mittee of detail, and from then until September
10 that report was the subject of their delibera-
tions. Every day for five weeks, and for five
hours each day — and during one week for six
hours each day — the work was kept up. From
the opening day to the end of the month of
August, William Samuel Johnson records in his
diary only five cool days, and two of those were
Sundays. Article by article, section by section,
clause by clause, the draft of the constitution was
discussed and passed upon. It was a trying and
a wearisome task. Since the adoption of the
great compromise and the protection of the inter-
ests of the small states in the senate, many of the
opposition had been won over and were now
working in harmony with those who were in favor
of establishing a strong national government. It
is little wonder, therefore, that before the end
was reached many of the delegates became impa-
tient with those who were stickling for points
which to lihe majority seemed trivial and that
toward the last, in order to bring the work to a

[IS*]

DETAILS AND COMPROMISES

conclusion, the large majority rode roughshod
over the few in the minority.

If these points are borne in mind, and if it is
remembered that much of the work during these
weeks was purely formal, it is possible to pass
rapidly over many of the things that consumed
a good deal of time but that were after all of
minor importance in considering the work as a
whole. The spirit of compromise was clearly
discernible in determining such details as the age
and terms of office of members of the legislature.
The qualifications of voters were settled in the
same spirit, by adopting the report of the com-
mittee that they should be the same "as those of
the electors in the several States, of the most
numerous branch of their own legislatures." It
being again impossible for the convention to
agree upon any satisfactory rule of property
qualifications for members of congress, it was
decided to drop it altogether, and the commit-
tee's provision that the legislature might establish
such qualifications was accordingly struck out.
The question over allowing the members of con-
gress to be appointed to offices that they them-
selves established was settled by prohibiting such
appointment to any office which was created, or
the emoluments of which had been increased,
during the term of the members in question, and
by providing that no person holding an office

[185]

THE FRAMING OF THE CONSTITUTION

under the United States could be a member of
congress.

The committee of detail had accepted the
report of the first compromise committee and had
placed future representation in the lower house
"at the rate of one for every forty thousand"
inhabitants. This ratio was objected to by Madi-
son because the future increase of population
would render the number of representatives
excessive. Gorham did not think that the govern-
ment would last long enough for that : "Can it be
supposed that this vast Country including the
Western territory will 150 years hence remain
one nation?" By simply inserting the words
"not exceeding," so that the clause read "not
exceeding the rate of one for every forty thou-
sand," the difficulty was removed and the section
was unanimously accepted.

Annual meetings of the legislature were
readily agreed to, but it was a question whether
May or December was the better time of year
for convening. Madison preferred May as the
better season for travelling, while for December
it was argued that a summer session would inter-
fere with the business of the members, almost all
of whom would probably be "more or less con-
nected with agriculture." The latter idea pre-
vailed, and the sessions were accordingly fixed
for the "first Monday in December unless a dif-

[186]

DETAILS AND COMPROMISES

ferent day shall be appointed by law," There
seems to have been no intention, indeed no
conception, that a long interval might elapse
between the election of members of congress and
their assumption of office. That unfortunate
condition is the result of an accidental com-
bination of circumstances attending the time
of the ratification of the constitution and the
inauguration of the new government.

The requirement of three years' citizenship for
members of the house and of four years for the
senate was regarded as insufficient in keeping
foreigners out of the legislature. The time was
accordingly lengthened to seven years for the
lower house, and a proposal was made to increase
it for the upper house to fourteen years. The
question was a delicate one as several member?
of the convention were themselves of foreign
birth. One of these, Butler, argued in favor of
the restriction, frankly admitting that until he
had lived in this country for some time he was not
fitted to serve in public office. Wilson, on the
other hand, spoke strongly against it. When he
lived in Maryland, he had felt keenly his being
barred from public office on that score, and
besides it seemed anomalous to permit a man to
share in the framing of a new constitution and
then prevent him, from holding office under it.
Nine years' citizenship was finally agreed to as a

[137]

THE FRAMING OF THE CONSTITUTION

suitable requirement for members of the upper
house, although an unsuccessful effort was made
by Wilson to have both this and the requirement
for the lower house reduced in length.

One of the cases in which the committee of
detail had exceeded its powers was in providing
for the payment of the members of both houses of
the legislature by the states in which they were
chosen. When this clause came before the con-
vention there was little discussion of the matter
at all. By a large majority it was voted that
they should be paid out of the national treasury.
This was considered necessary to render them
independent of the states. There was objection
to fixing in the constitution the amount of the
payment because of the changes that would take
place in the value of money. To avoid the diffi-
culty a previous suggestion of Madison's was
considered that some other standard of value
should be taken, such as wheat This was not
considered feasible, and it was finally decided to
allow the legislature "to fix their own wages."
There were objections to this method, but they
were rather of sentiment or of delicacy, and it
seemed to be the only practicable way.

The clause providing that money-bills should
originate in the lower house and prohibiting the
senate from amending them, which had been a
part of the great compromise, was seriously

[188]

DETAILS AND COMPROMISES

objected to. This procedure was not copied
directly from the British constitution but came
through the medium of the colonial and state
governments, where it had not proven an un-
qualified success. It was considered by some of
the delegates as of no particular importance and
it was opposed by others, on practical grounds, as
being inherently objectionable. It was accord-
ingly struck out, but the action caused so much
dissatisfaction that the question was reconsidered.
After a debate, in which several modifications
were suggested and disapproved of and in which
Randolph, Gerry, Mason, Franklin, Dickinson,
and Williamson, argued in favor of the restric-
tion, while Madison, Wilson, Rutledge, Gouver-
neur Morris, Charles Pinckney, and Ellsworth
opposed it, the provision was again voted down,
In recording the vote, Madison noted that Wash-
ington voted in favor of the measure, but he
explained that Washington disapproved and had
formerly voted against it and that he said "he
gave up his judgment because it was not of very
material weight with him and was made an essen-
tial point with others, who if disappointed, might
be less cordial in other points of real weight."

The powers to be vested in congress were an
all-important feature of the committee's report.
The first stipulation of the convention under this
head was that the new congress should have all

[139]

THE FRAMING OF THE CONSTITUTION

the legislative rights of the old. And the sur-
prising thing, especially to one accustomed to
condemn the articles of confederation, is to see
how large a part of the powers vested in congress
were taken from the articles of confederation.
The resolutions of the convention had further
provided that there should be included in the
powers of congress the right to legislate in all
cases for the general interests of the union and
where the states were separately incompetent, or
where the harmony of the United States might
be interrupted by the exercise of individual
legislation. Under this provision the committee
defined treason against the United States and
provided for the punishment thereof; it provided
for the establishment of a uniform rule of natu-
ralization, for the punishment of offenses against
the law of nations; and in two short clauses it
granted power for the laying of taxes and for
the regulation of commerce. A somewhat longer
clause provided for the calling forth of the militia,
"to execute the laws of the Union, enforce
treaties, suppress insurrections and repel inva-
sions." And a very important clause was added
"to make all laws that shall be necessary and
proper for carrying into execution the foregoing
powers, and all other powers vested, by this Con-
stitution, in the government of the United States,
or in any department or officer thereof/*

[1*0]

DETAILS AND COMPROMISES

The New Jersey plan had shown early in
the convention that even the small states had
been willing to increase considerably the powers
of congress. Yet it is an indication of how far
the members of the convention had progressed
toward the idea of a strong national government
that most of the extensive powers specified by
the committee were readily accepted by the con-
vention, and that most of them were, in fact,
accorded unanimous consent. Some minor modi-
fications were made such as "to declare war"
instead of to make war, or "to provide and main-
tain a navy" instead of to build and equip fleets;
a further power was added in authorizing con-
gress to establish uniform laws on the subject of
bankruptcy; and an interesting question was
raised relating to the assumption of state debts
by the national government.

Several members of the convention, among
them Gerry, argued strongly for a positive in*
junction upon congress to assume the state
obligations, as a matter both of justice and of
public policy. The objections to assumption
were based mainly upon the fear of benefiting
speculators rather than legitimate creditors.
The question was referred to a committee of a
member from each state, and it was finally com-
promised by providing that all debts should be
"as valid against the United States under this

THE FRAMING OF THE CONSTITUTION

constitution as under the confederation/* This
left the matter in the same delightful uncertainty
as before. Not long after this, Gerry announced
his inability to accept the new constitution in the
form which it had taken, and he soon became
openly hostile to it. This hostility was charged
to his failure to accomplish the assumption of
state debts, for he was said to have speculated
heavily in this class of securities. While this
might have been in accord with the ethics of the
time, in justice to Gerry it ought to be said that
the charge was made anonymously in the con-
troversy that later raged over the adoption of the
constitution, and Gerry strenuously denied hold-
ing more than a very small amount of these
securities.

A question was raised at this same time regard-
ing the control of the state militia, and it was
referred to the same committee that was con-
sidering the assumption of state debts. The
reference of both matters to the same committee
of a member from each state was probably made
upon the principle that both involved questions of
state rights. While the committee reported upon
Ix>t3i questions at the same time, they were taken
up separately by the convention. The question of
the state militia was settled by granting to the
federal government the right to pass laws secur-
ing unif orraity in the organization, arming, and

DETAILS AND COMPROMISES

discipline of the militia, and the right to govern
such parts of them as might be called into the
service of the United States, while to the states
was reserved the appointment of the officers and
the training of the militia according to the
discipline prescribed by congress.

Another question of interest and importance
was with regard to the admission of new states.
It will be remembered that Gouverneur Morris
had favored the admission of new states into the
union under such limitations as would leave the
control of federal matters in the hands of the
Atlantic states. Either on their own responsi-
bility or because they interpreted the views of the
convention that way, the committee of detail
inserted a provision that new states should "be
admitted on the same terms with the original
states/' When it came up for consideration
Morris protested against this provision, and he
made his objection on the same grounds as his
previous opposition: "He did not wish to bind
down the legislature to admit Western States
on the terms here stated . . . [He] did not mean
to discourage the growth of the western country.
. . . He did not wish, however, to throw the
power into their hands." Such men as Madison,
Mason, and Sherman opposed him, but Morris
succeeded in getting the objectionable clause
stricken out, and then without a dissenting voice

[143]

THE FRAMING OF THE CONSTITUTION

the convention agreed to his substitute: "New
States may he admitted hy the Legislature into
the Union/' This phraseology is apparently so
artless that it might well ohtain the unanimous
support of the convention, but in view of its ori-
gin and authorship it acquires great significance.
How great this is one hardly realizes until Mor-
ris's own interpretation of the clause is con-
sidered. Sixteen years later, at the time of the
Louisiana Purchase, in a letter to Henry W.
Livingston, he wrote:

<eYour inquiry ... is substantially whether the Con-
gress can admit, as a new State, territory, which did not
belong to the United States when the Constitution was
made. In my opinion they can not.

"I always thought that, when we should acquire
Canada and Louisiana it would be proper to govern
them as provinces, and allow them no voice in our coun-
cils. In wording the third section of the fourth article,
I went as far as circumstances would permit to establish
the exclusion. Candor obliges me to add my belief, that,
had it been more pointedly expressed, a strong opposi-
tion would have been made."1

1 Mr. Justice Campbell, in delivering his concurring opinion in
the Dred Scott case (19 Howard, 507), cited this letter of
Morris's and it was also introduced in support of the government's
cause when the Insular Cases were argued before the Supreme
Court It is interesting to note, however, that in the latter
instance only so much of the letter was quoted as asserts the right
to govern territory not originally belonging to the United States
as provinces without voice in Ike federal councils. That part of

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DETAILS AND COMPROMISES

The admission of new states naturally brought
up the question of western land claims, and the
same action was taken as in the case of the state
debts. The matter was left in statu quo:
"Nothing in this Constitution contained shall be
so construed as to prejudice any claims either of
the United States or of any particular state."
This was attached to another clause giving con-
gress power "to dispose of and make all needful
rules and regulations respecting the territory or
other property belonging to the United States."

On the other hand, it was felt necessary to place
limitations upon the powers of congress in certain
directions. A general restriction upon the activ-
ities of congress was to be found in the veto
power of the president, which the convention had
decided could be overruled by a two-thirds vote
of both houses. In working out the details of this
provision the committee seem to have copied
directly from the constitution of Massachusetts,
although Madison states it was modelled on

the letter which doubts the right of admitting such territory into
the union was significantly omitted. Brief in the Insular Gases,
Washington, 1901, 164.

Bancroft, History of the Constitution (sixth edition, II, 163),
omits this particular letter, but cites others by the same hand in
support of his surprising statement that Horns "gave his ancient
fears to the winds," and proposed the clause in question "with the
full understanding and intention that an ordinary act of legisla-
tion should be sufficient by a bare majority to introduce foreign
territory as a state into the union."

[145]

THE FRAMING OF THE CONSTITUTION

New York. The convention accepted this with
some minor modifications, and then changed the
required vote to overrule from two-thirds to
three-fourths.

The great compromise had provided that direct
taxation should be proportioned to population,
to which the committee of detail added that "no
capitation tax shall be laid unless in proportion
to the census*" The committee of detail had
taken from the articles of confederation the pro-
vision that the United States should not grant
any title of nobility. The convention accepted
both of these and added another provision from
the articles of confederation: "JSTo person holding
any office of profit or trust under the United
States, shall without the consent of the Legisla-
ture accept of any present, emolument, office, or
title of any kind whatever, from any king, prince
or foreign State/'

One of the limitations placed upon the powers
of congress by the committee of detail took the
form of a statement of just what should consti-
tute treason against the United States, and of a
stipulation that no attainder of treason should
work corruption of blood or forfeiture, except
during the life of the person attainted. With
some verbal modifications this provision was
unanimously adopted by the convention, and a
f urther provision was added that congress should

[146]

DETAILS AND COMPROMISES

pass no bill of attainder nor any ex post facto
law.

While the powers of congress were under con-
sideration, the convention approved the power
"to borrow money/' but disapproved the words
"and emit bills," on the credit of the United
States. Gouverneur Morris said that "the
Monied interest will oppose the plan of Govern-
ment, if paper emissions be not prohibited."
Read "thought the words, if not struck out,
would be as alarming as the mark of the Beast
in Revelations." As it was generally felt that
the government under the power to borrow
money would have sufficient latitude in "the use
of public notes as far as they could be safe and
proper," the objectionable words were struck out.

British tradition had shown itself unmistakably
in defining treason and in prohibiting bills of
attainder, and another interesting manifestation
of it came when the power "to raise armies" was
under consideration. The convention first modi-
fied the wording of the clause so that it read "to
raise and support armies" and then added the
proviso that no appropriation should be for a
longer term than two years.

The limitations thus far considered were theo-
retically important, but those placed upon
the control of commerce were of direct practical
concern. ISTew England and the middle states

[147]

THE FRAMING OF THE CONSTITUTION

were the commercial and shipping sections of
the country. To require that all American pro-
ducts should be carried in American built and
American manned vessels would have been a
great stimulus to shipbuilding and commerce.
But the south was a producing section. It had
to have markets for its raw materials and it
therefore needed free intercourse with the outside
world. Such restrictions as had been laid on the
colonies by the British government, before
American independence, were greatly dreaded.
Also, to meet its labor problem, the south needed
an increasing number of slaves* The influence
of the southern members in the work of the com-
mittee of detail has already been referred to in
the provisions, that there should be no tax on
exports nor on "such persons as the several States
shall think proper to admit," and that navigation
acts should require a two-thirds vote of both
houses*

When these questions came before the con-
vention, the prohibition of export taxes was
objected to, but more strenuously by the middle
states than by New England. Madison sug-
gested as a betterment of the situation that
export taxes might be laid by a two-thirds vote.
This proposal was lost and Massachusetts then
supported the provision of the printed draft.
The prohibition of export taxes was accordingly

[148]

DETAILS AND COMPROMISES

adopted and by a vote of seven to four. The
next clause of this same section, which was
intended to forbid interference with the slave
trade, precipitated a sharp although a brief
discussion.

A few of the northern delegates and Mason
of Virginia objected on moral grounds to the
recognition of slavery in the constitution, and
more particularly to the encouragement of that
institution through permitting the slave trade.
But the stronger resentment seems to have been
against the attitude of the delegates from North
Carolina, South Carolina, and Georgia, who de-
clared that their states would never accept the
new plan "unless their right to import slaves be
untouched." To hold up the convention with
such a threat was irritating, to say the least.
There were others, perhaps a majority of the
delegates, that were well represented by Ells-
worth who argued in favor of letting "every
state import what it pleases. The morality or
wisdom of slavery are considerations belonging
to the States themselves — What enriches a part
enriches the whole, and the States are the best
judges of their particular interest." It being
doubtful whether a satisfactory settlement of the
question could be made by the convention, a pro-
posal was welcomed that the clause relating to
the slave trade and the section on navigation acts

[149]

THE FRAMING OF THE CONSTITUTION

should be referred to a committee of a member
from each state. As Gouverneur Morris frankly
expressed it: "These things may form a bargain
among the Northern and Southern States."

The committee reported promptly in favor of
no prohibition before 1800 of "the migration or
importation of such persons as the several States
now existing shall think proper to admit/' but
meanwhile permitting the taxation of persons
thus imported at a rate not exceeding the average
of import duties, and permitting navigation acts
to be passed without requiring a two-thirds vote.
After changing the date to 1808 and limiting the
tax to $10 as the equivalent of the estimated 5
per cent import duty, objection was made to the
vagueness of the terms used, and Gouverneur
Morris proposed that the clause should read
"importation of slaves into North Carolina,,
South Carolina and Georgia." This seemed
inadvisable, and although attention was called to
the fact that "as the clause now stands it implies
that the Legislature may tax freemen imported,"
the convention accepted the first part of the
report relating to the slave trade — New Jersey,
Pennsylvania, Delaware, and Virginia being
against it. The dause relating to navigation
acts was postponed, but a few days later, an
amendment requiring a two-thirds vote having

[150]

DETAILS AND COMPROMISES

been lost, the convention unanimously accepted
this part of the compromise also.

This was one of the conspicuous and important
compromises of the convention. It was not com-
monly so frankly spoken of as it was by General
Pinckney. In the convention he argued against
any restriction upon the passing of navigation
acts because of the "liberal conduct" of the
eastern states "towards the views of South Caro-
lina." And a few months later in his state legis-
lature, in answer to objections to the limitation
of the slave trade to the year 1808, he explained:
" 'Show some period/ said the members from the
Eastern States, 'when it may be in our power to
put a stop, if we please, to the importation of this
weakness, and we will endeavor, for your conven-
ience, to restrain the religious and political preju-
dices of our people on this subject.' ... In
short, considering all circumstances, we have
made the best terms for the security of this species
of property it was in our power to make. We
would have made better if we could; but, on the
whole, I do not think them bad." It is worth
noting that the prohibition of export taxes was
no part of the compromise. The point had been
settled previously and was not referred to the
committee nor was it included in their report*
Undoubtedly the decision upon export taxes was
partially responsible for bringing about the com-

[151]

THE FRAMING OF THE CONSTITUTION

promise in question, but it did not actually form
a part of it.

As soon as the compromise had been finally
adopted, a clause providing for the return of
fugitive slaves was unanimously agreed to with-
out debate.

When the compromise on the slave trade
and navigation acts was before the convention,
provisos were adopted that no "regulation of
commerce or revenue" should "give preference to
the ports of one state over those of another," and
that "all duties, imposts, and excises, laid by the
Legislature, shall be uniform throughout the
United States." This action was taken as the
result of an organized and determined effort on
the part of the Maryland delegates. Dr. Mc-
Henry had been called home to Baltimore by the
serious illness of his brother shortly after the
convention first met, and he did not return to
Philadelphia until the members reassembled in
August to receive the report of the committee of
detail. He then persuaded his fellow delegates
from Maryland to meet together to discuss the
report and to try and agree upon some common
plan of action. Of several of these meetings
McHenry kept some notes, and while there were
different points with which they were not satis-
fied, they were especially concerned over the com-

[152]

DETAILS AND COMPROMISES

mercial powers of congress. The modifications
noted above were among the results obtained.

Luther Martin reports another such gathering
of delegates: "There Mr. Gerry and Mr. Mason
did hold meetings, but with them also met the
Delegates from New Jersey and Connecticut, a
part of the Delegation from Delaware, an hon-
orable member from South Carolina, one other
from Georgia, and myself." Of this latter
caucus we have no further record*

Sad experience under the articles of confedera-
tion had taught the United States the dangers
which lay in the interference with the work of
the general government through the action of the
individual states. An important feature of the
new government, accordingly, was the restric-
tions that were to be placed upon the states. The
committee of detail had prepared two articles on
this subject. The first prohibited the states
absolutely from coining money, granting letters
of marque and reprisal, entering into treaties or
alliances, and from granting titles of nobility.
The second prohibited the states, except with the
consent of congress, from emitting bills of credit,
making anything but specie legal tender, laying
duties, keeping troops or ships of war, making
agreements with other states, or from engaging
in war unless actually invaded. These sections
were important then, and they have proven to be

[158]

THE FRAMING OF THE CONSTITUTION

of importance since the constitution has been in
operation, yet they were taken in the main from
the articles of confederation. The provisions
regarding the coining of money, bills of credit,
legal tender, and laying of duties, were new and
of great significance. But the greater signifi-
cance comes from the fact that in the new instru-
ment of government the limitation of the indi-
vidual state's activity was more sharply defined
and unequivocally expressed, and that it was to
be enforced under a strong government. These
restrictions were readily accepted by the conven-
tion. The prohibition of bills of credit, and of
making anything but specie legal tender was
made absolute, instead of permissible with the
consent of congress, and the states were also pro-
hibited from passing any bill of attainder or eos
post facto law. A proposal by Ruf us "King, how-
ever, was defeated, that they should take from the
Ordinance of 1787, passed by congress while the
convention was in session, the prohibition of any
law impairing the obligation of contracts.

To one who is especially interested in the judi-
ciary, there is surprisingly little on the subject to
be found in the records of the convention. We
have already seen that the first question in this
connection that aroused any particular discussion
had to do with the establishment of inferior
courts. The objection to these courts came fi^om

[154]

DETAILS AND COMPROMISES

the feeling that cases ought to be tried in the
state courts first and come to the federal courts
only on appeal. When that difficulty was dis-
posed of, hy permitting hut not requiring the
establishment of inferior courts, a question came
up over the method of appointment of the
judges. The last determination of that question
had been for an appointment by the senate, and
for the present that was allowed to stand. The
jurisdiction of the federal courts had not been
determined by the convention beyond the accept-
ance of the general principle that it should
include cases arising under the laws of the United
States and cases involving the national peace and
harmony. The specifications regarding this
jurisdiction were thus left to the committee of
detail. The committee having drafted this part
of its report with considerable care, there was no
objection raised except to the wording of a few
clauses, the convention tending rather to an
enlargement than to a limitation of jurisdiction.
The cases under laws of the United States were
extended "to all cases both in law and equity
arising under this Constitution and the laws of
the United States, and Treaties made . . . under
their authority/' All cases affecting ambassa-
dors and other public ministers, and all cases of
admiralty and maritime jurisdiction, were agreed
to. Controversies between states and the citizens

[155]

THE FRAMING OF THE CONSTITUTION

of different states seemed to include territorial
disputes as well, and so the elaborate procedure
copied from the articles of confederation for such
cases was stricken out, and "controversies to
which the United States shall be a party" was
added.

That the jurisdiction of the supreme court
should be original in cases affecting foreign min-
isters and in cases to which a state should be a
party and appellate in all other cases, was ac-
cepted without question, except that the appel-
late jurisdiction was made to be "both as to law
and fact." That the trial of criminal offenses
should be by jury and should be held in the state
where the crime was committed met with no
objection. At this point it was also agreed that
the writ of habeas corpus should not be sus-
pended unless in cases of rebellion or invasion
the public safety might require it.

Not a word in all this of that great power
exercised by the federal courts to declare laws
null and void if they are in contravention to the
constitution. This power has been the subject
of much dispute, and many have looked in vain
in the proceedings of the convention for the
authority to exercise any such power. The diffi-
culty is easily solved* The question did not come
up in connection with the discussion of the juris-
diction of ifae federal courts* At different times

[166]

DETAILS AND COMPROMISES

in the sessions of the convention, however, it was
proposed to associate the federal judges with the
executive in a council of revision or in the exercise
of the veto power. At those times it was asserted
over and over again, and by such men as Wilson,
Madison, Gouverneur Morris, King, Gerry,
Mason, and Luther Martin, that the federal
judiciary would declare null and void laws that
were inconsistent with the constitution. In other
words, it was generally assumed by the leading
men in the convention that this power existed.
Perhaps Madison expressed this in the best
form. He has already been quoted as saying
that he "considered the difference between a
system founded on the Legislatures only, and
one founded on the people, to be the true differ-
ence between a league or treaty, and a Constitu-
tion" He then went on to say : "A law violating
a treaty ratified by a pre-existing law, might be
respected by the Judges as a law, though an
unwise or perfidious one. A law violating a
constitution established by the people themselves,
would be considered by the Judges as null &
void."

In three short articles the committee of detail
had provided for interstate privileges such as
extradition of criminals, recognition by one state
of the legislative acts and judicial proceedings
of another, and entitling the citizens of one state

[157]

THE FRAMING OF THE CONSTITUTION

to the privileges and immunities of citizens in the
other states. These provisions were taken from
the articles of confederation, and with some
modifications in wording were accepted by the
convention without question.

The demand had been general that amend-
ments to the new constitution should not require
a vote of all the states, but the convention had
gone no farther than to declare the desirability
of amendment whenever it should seem neces-
sary. The committee of detail proposed that on
application of the legislatures of two-thirds of
the states for an amendment congress should
call a convention for that purpose. This was
adopted unanimously.

The method of ratifying the new constitution
was little discussed. There had been a general
agreement previously that popularly chosen
conventions were preferable to state legislatures,
primarily because there was more probability that
the constitution would be adopted by the former.
The question then arose as to how many states
must ratify in order to put the constitution into
effect. A proposal for thirteen states was first
defeated. A proposal for ten states was defeated
by a small majority. Madison, Washington, and
some others were in favor of ratification by seven
states, and Madison proposed that the ratifica-
tion should be by seven states provided they

[168]

DETAILS AND COMPROMISES

included a majority of the people. A proposal
for nine states was finally accepted. It was
risking too much to allow the new constitution
to depend upon the approval of congress which
might be fatally delayed. It was discourteous to
ignore congress altogether, and so in a non-
committal way it was finally agreed that the new
constitution should be laid before congress with
the recommendation that it be submitted to
conventions in the different states.

These were the last articles in the report of the
committee of detail, but that they were disposed
of did not mean that the work was over. For
one reason or another several articles had been
postponed, and some of the most important
points were still unsettled.

51591

CHAPTER XI

THE ELECTION OF THE
PRESIDENT

Whatever difficulties might have been encoun-
tered in other directions, they paled into insig-
nificance in comparison with the problem before
the convention of determining a satisfactory
method of iJte^«@ailim. The previous

troubles of the convention in this matter have
been noticed, and it was observed that every solu-
tion reached was unsatisfactory. The difficulty
now had become greater because the powers of
the executive had been enlarged.

The resolutions of the convention had only
declared that there should be a single executive
with power to execute the

Ln

elaborating these resolutions, tKeT committee of
detail had made it the duty of the president to
43jive information to congress, and had authorized
him to recommend to that body whatever meas-
ures he thought necessary or desirable; he was
empowered to convene congress on extraordinary
occasions and, in case of disagreement between

[160]

THE ELECTION OF THE PRESIDENT

the two houses on the subject, to adjourn them.
He was to receive ambassadors, was to be com-
mander-in-chief of the army and navy, and had
power to grant reprieves and pardons. In case
of death or removal from office, he was to be
succeeded by the president of the senate. As
already noticed the most of these provisions were
taken directly from the New York state consti-
tution, and an interesting relic of that origin
was the authorization to "correspond with the
supreme Executives of the several states/* From
an official designed to be, at the outset of the
convention, a dependent of the legislature, the
executive had developed into an independent
figure of importance. His functions might be
those of a governor, but they were of a governor
who was the head of thirteen states. No wonder
that some of the delegates stood aghast. Limi-
tations had been placed in rendering the presi-
dent subject to impeachment, and in making it
possible to overrule his veto of legislative acts
by a two-thirds or three-fourths vote of both
houses; but some further safeguard was neces-
sary and the best was to be obtained in establish-
ing a suitable term of office and a satisfactory
mode of election.

When an institution has been in reasonably
successful operation for nearly one hundred and
twenty-five years, it is hard to conceive the att>-

[161]

THE FRAMING OF THE CONSTITUTION

tude towards it of the men who lived before that
institution existed. It was a new officer whom
they were creating, and he loomed all the larger
in their eyes that from the very limitations of
their experience they were compelled to think of
TIJTTI in terms of monarchy, the only form of
national executive power they knew. As an
illustration of this take the account given by
Baldwin a few weeks later to President Stiles,
which was recorded by the latter in his diary: "As
to a President, it appeared to be the Opinion
of Convention, that he should be a Character
respectable by the Nations as well as by the
federal Empire. To this End that as much
Power should be given him as could be consist-
ently with guarding against all possibility of his
ascending in a Tract of years or Ages to Despot-
ism and absolute Monarchy: — of which all were
cautious. Nor did it appear that any Members
in Convention had the least Idea of insidiously
laying the Foundation of a future Monarchy like
the European or Asiatic Monarchies either
antient or modern. But were unanimously
guarded and firm against every Thing of this
ultimate Tendency. Accordingly they meant to
give considerable Weight as Supreme Executive,
but fixt him dependent on the States at large,
and at all times impeaehable."
Aoother factor should be taken into considera-

U62J

THE ELECTION OF THE PRESIDENT

tion, namely, that these questions relating to the
presidency were being considered with reference
to the future and permanent policy of the
country. It seems to have been generally ac-
cepted, it certainly was more than once referred
to in the convention as a matter of course, that
Washington would be the first president of the
United States. In 1787 Washington was at the
very height of his popularity and so great was
the trust in him that no fear was felt regarding
the inauguration of the new office. It is possible
that the extent of power vested in the president
was influenced by the same consideration. How-
ever that may have been, it should be borne in
mind that this was a discussion of future policy,
and it was against future dangers that the con-
vention was guarding. Incidentally, it is indic-
ative of the ideas of the time that, after the new
government was installed, the title which Wash-
ington himself was said to have preferred as the
most fitting one for his position was "His High
Mightiness, the President of the United States
and Protector of their Liberties/'

The powers and duties of the president as
defined by the committee of detail were accepted
by the convention with some modifications that
were mainly in wording, but an election by con-
gress for seven years with a second term forbid-
den was no more satisfactory now than it had

[163]

THE FRAMING OF THE CONSTITUTION

been before. After voting down by a large
majority a proposal for an election by the people,
and by a majority of one a proposal for an elec-
tion by electors chosen by the people, the conven-
tion divided equally upon the general proposition
for an election by electors. The further con-
sideration of the question was then postponed.
Shortly afterwards Wilson remarked: "This
subject has greatly divided the House, and will
also divide people out of doors. It is in truth
the most difficult of all on which we have had to
decide."

On the last day of August, the convention
referred all parts of the constitution not yet fin-
ished to a committee of one from each state. The
committee reported immediately upon some of
the matters, and on September 4 reached that
part of their work relating to the president.
Although all of the ideas embodied in this report
had been broached previously in the convention,
the report came as a surprise.

The plan proposed for the election of the
executive was a system of electors chosen in each
state as its legislature might direct. The electors
were to be equal in number to the state's repre-
sentation in congress, that is, both senators and
representatives. The electors in each state were
to meet and to vote for two persons, one of whom
should not be an inhabitant of that state. These

[164]

THE ELECTION OF THE PRESIDENT

votes were to be listed, certified, sealed, and
sent to the senate of the United States. They
were to be opened and counted in the senate, and
the person having the greatest number of votes
was to be president, provided such number was
a majority of dl the electors. In case of a tie,
the senate was to choose immediately between
them, and if no one had a majority, the senate
was to choose the president from the five highest
on the list. The person having the next greatest
number of votes was to be vice-president and in
case of a tie the senate was to choose one of them*

As qualifications for the presidency it was pro-
vided that the incumbent should be thirty-five
years of age, a natural born citizen of the United
States or a citizen at the time of the adoption of
the constitution, and a resident within the United
States for fourteen years. The vice-president
was to be ex officio president of the senate but
with a right to vote only in case of a tie.

Apparently on the assumption that a satis-
factory method of electing the president had been
discovered, the committee further recommended
that the president now be given power, with the
advice and consent of the senate, to make treaties,
and to nominate and appoint ambassadors and
judges of the supreme court, but no treaty was
to be made without the consent of two-thirds of
the members present*

[165]

THE FRAMING OF THE CONSTITUTION

As the matter of a council for the president
had never been satisfactorily settled, the com-
mittee now recommended that the president be
empowered to require the opinion in writing of
the principal officer of each of the executive
departments. No such departments were pro-
vided for in the constitution, but it was assumed
that they would be established and that there
would be a single officer at the head of each.
Almost as if it were incidental, the committee
also recommended that the president's and all
other cases of impeachment should be tried by
the senate instead of the supreme court.

The central feature of this report was the -pro-
posed method of electing the president, and that
proposal was a compromise. The compromise
does not appear on the surface, but it was
referred to in the course of the debates, and in
later years it was thus explained by several mem-
bers of the convention, so that no doubt attaches
to it.

The objections to a popular election, direct or
indirect, were a lack of confidence in the knowl-
edge and judgment of the people and a fear that
any such method would give too great an advan-
tage to the large states* Under the proposed
system, as the number of electors from each state
was to equal the number of its senators and rep-
resentatives, the large states, with their greater

[166]

THE ELECTION OF THE PRESIDENT

representation in congress, would have a distinct
advantage. To offset this, when no choice by the
electors resulted, the senate was to elect the
president from the highest five candidates on the
list, and in the senate it was conceded the small
states would have an advantage.

This was no pretense, a mere sop thrown out
to the small states. It was expected that the
electors would naturally vote for men from their
own state, hence the provision that each elector
should vote for two persons, one of whom should
not be a resident of the state with himself. And
each elector was expected to vote independently
according to his own best judgment. Under
those circumstances, it was conceded that Wash-
ington would be chosen in the first election, but
in subsequent elections it was expected that the
vote would be so scattered as not to give a
majority to any one person. This would throw
the election into the senate. In other words, and
it was so explained again and again, and by such
men as Madison, Sherman, King, and Gouver-
neur Morris, under this system the large states
would nominate the candidates and the eventual
election would be controlled by the small states.

The convention acted on the assumption that
this would happen in the great majority of cases.
"Nineteen times in twenty,** Mason asserted in
the federal convention, and a little later in the

[167]

THE FRAMING OF THE CONSTITUTION

Virginia state convention he claimed forty-nine
times out of fifty, the vote of the electors would
not he decisive. Several members of the conven-
tion thought that this "would not he the case," hut
after Mason insisted that "Those who think there
is no danger of there not heing a majority for
the same person in the first instance ought to give
up the point to those who think otherwise," it was
tacitly conceded. It is quite possible that here,
as in so many other questions, the large states
accomplished their purpose under a veil of con-
cession. It was not for them to dispute the
improbability of an election resulting in the first
instance. If they had the advantage in the
choosing of electors, it was certainly still more
to their benefit if, contrary to expectations, the
electors were to determine the result.

The chief objection to the proposed plan of
election was the additional power that it would
place in the senate already vested with excessive
powers. Several proposals to allow a plurality
of electoral votes to determine the choice were
voted down. In order to better the situation, it
was agreed that two-thirds of the senate must
be present at the election. Some one proposing
that the voting should be by states immediately
suggested substituting the house of representa-
tives for the senate but retaining the principle of
voting by states. Without any hesitation the

[168]

THE ELECTION OF THE PRESIDENT

convention adopted the substitute, Delaware
only voting in the negative, and with a few minor
changes the new plan of electing the president
was acceptable to the convention. The commit-
tee had reported on September fourth and by
the sixth the report was virtually adopted,
although the final votes and a few minor points
went over until the next day. Three days were,
at the last, sufficient to settle this most difficult
question which had bothered the convention for
three months.

Serious objection was taken to the vice-presi-
dency, and it was frankly admitted by Williair-
son, a member of the committee, that the officer
"was not wanted. He was introduced only for
the sake of a valuable mode of election which
required two to be chosen at the same time."
Then objection was made to his being forced
upon the senate as its presiding officer. The con-
vention, however, accepted the committee's point
of view and voted by a large majority that the
vice-president should be e% offido president of
the senate, When the ultimate election of the
president was transferred to the house of repre-
sentatives, the provision for the vice-president
was left as before, that is, the senate was to make
the choice in case of a tie.

The avowed purpose of the new method of
election was to render the executive independent

[169]

THE FRAMING OF THE CONSTITUTION

of the legislature and thus do away with the
intrigue and corruption inevitable to the other
arrangement. In the previous proposals for
choosing the president by electors, it had been
the prevalent idea that the electors should meet
together in one place* It was felt to be rather
&n expensive proceeding to bring so many per-
sons from the distant states for the single pur-
pose of electing a president, and such a meeting
was thought to offer a splendid field for corrup-
tion. The new plan, accordingly, provided that
the electors should meet in their respective states.
Voting at the same time and at so great distance
from one another "the great evil of cabal was
avoided." A similar precaution was taken in
the provision that when the votes were opened in
the presence of congress, if it was found that no
one had a majority "then the House of Repre-
sentatives shall immediately chuse by Ballot one
of them for President." Another safeguard was
added by the convention in declaring that no per-
son should be appointed an elector who was a
member of congress or held any office of profit
or trust under the United States. Just what was
included under that dreaded word "cabal" it
would be difficult to say. Besides intrigue and
corruption there may have been a vague idea of
political parties, but certainly there was no con-
ception of the party organization that was to

[170]

THE ELECTION OF THE PRESIDENT

twist to its own devices the carefully devised
scheme of the convention.

In view of the ever-recurring interest in the
presidential term of office, it may not be amiss to
state that the convention never considered the
question of a "third term." Their difficulty was
whether or not the president should be elected by
the legislature. In the one case he should have
but one term, and in the other he should be eli-
gible to re-election. Six or seven years seemed to
be the acceptable length of a single term, and
four years was regarded as a convenient time if
re-election was permissible. That is practically
the only form in which those questions came up.
It was evident that the convention was grow-
ing tired. The committee had recommended that
the power of appointment and the making of
treaties be taken from the senate and vested in
the president "by and with the advice and consent
of the senate." With surprising unanimity
and surprisingly little debate, these important
changes were agreed to. The requirement of the
concurrence of two-thirds of the senate in
treaties was amended at Madison's suggestion
to except treaties of peace. It was then adopted
and the next day reconsidered and re-adopted
after striking out the exception of treaties of
peace. A proposal of a council for the president
was rejected, although it was supported by Madi-

[171]

THE FBAMING OF THE CONSTITUTION

son, Wilson, Franklin, Mason, and Dickinson.
The convention then unanimously accepted the
committee's recommendation "authorizing the
President to call for the opinions of the Heads of
Departments in writing." After very slight
modifications, the trial of impeachments was
vested in the senate.

As a part of the compromise in determining
the method of electing the president, it had been
agreed in the committee that the originating of
money-bills should once more be restricted to the
house of representatives. Gouverneur Morris
and King referred in the convention to this fea-
ture of the compromise, and Madison, who was
also a member of the committee, was perfectly
frank as to the way in which this provision was
used: "Col: Mason Mr. Gerry and other mem-
bers from large States set great value on this
privilege of originating money bills. Of this
the members from the small States, with some
from the large States who wished a high mounted
Government, endeavored to avail themselves, by
making that privilege, the price of arrangements
in the constitution favorable to the small States*
and to the elevation of the Government." The
committee accordingly reported such a clause*
but with the proviso that the senate might amend.
When it was presented to the convention, it was
deliberately held up, on the suggestion of Gou-

[172]

THE ELECTION OF THE PRESIDENT

verneur Morris, to make sure that the other
points were first adopted. When that was suc-
cessfully accomplished, the convention accepted
the clause. It had served its purpose as a com-
promise factor, and all virtue being taken from it
by granting to the senate an unrestricted privi-
lege of amendment, it was finally allowed a place
in the constitution.

During the sessions of the convention, but it
would seem especially during the latter part of
August, while the subject of the presidency was
causing so much disquiet, persistent rumors were
current outside that the establishment of a
monarchy was under consideration. The com-
mon form of the rumor was that the Bishop of
Osnaburgh, the second son of George III, was
to be invited to become King of the United
States. It evidently seemed desirable to the con-
vention to stop these rumors, for what was clearly
an inspired statement appeared about the same
time in various private letters and finally in the
newspapers: "tho5 we cannot, affirmatively, tell
you what we are doing, we can, negatively, tell
you what we are not doing — we never once
thought of a king."1

i In the Independent Gazetteer of August 18, 1787, is this anec-
dote: "On taking down the CROWN- of Christ C&urch steeple, which
some time since had been much injured by lightning, one of the
bystanders asked what they were going to do with it He was told
it was to be repaired and put up immediately. *I guess,* says an

[178]

THE FRAMING OF THE CONSTITUTION

And yet one wonders if there were not some
thought of monarchy.2 The records show frank
expressions by certain of the members that they
considered a limited monarchy the best form
of government. When McHenry returned to
the convention on August 6, he reports that he
saw his colleague Mercer making out a list of
members in attendance with "for" or "against"
marked opposite almost every name. On being
asked what that meant, Mercer laughingly
replied that those marked with a "for" were for
a king. McHenry copied the list, and on
learning what it was Luther Martin copied it
likewise. There were said to be over twenty
names favoring a royal government. Mercer
later claimed that he said these delegates were
in favor of a national government, but his state-
ment is not very convincing and leads one to
think that McHenry reported the incident in
substance correctly. If some of the delegates
were in favor of a monarchical government it is

arch boy, -who had been very attentive to the query and answer,
they had better wait till the Convention breaks up, and know first
what they recommend T" W. P. Hazard, AnnaU of Philadelphia.
Revised from "Watson's Annals," Philadelphia, 1879, vol. III,
p. 197.

2 Richard Krauel in ihe American Historical Review, XVII,
44-51, presents interesting evidence to show that Nathaniel Gorham
in the latter part of 1786 actually wrote to Prince Henry of
Prussia with regard to the possibility of his becoming the monarch
of the United States.

[17*3

THE ELECTION OF THE PRESIDENT

possible that, when the presidency was so much
in doubt, they may have been circulating rumors
of establishing a monarchy in order to try out
public opinion. If so, the presidential compro-
mise put an end to all such schemes at once, for of
all things done in the convention the members
seemed to have been prouder of that than of any
other, and they seemed to regard it as having
solved the problem for any country of how to
choose a chief magistrate*

CHAPTER XII
FINISHING THE WORK

At the same time that the committee on the
unfinished parts of the constitution presented its
report on the election of the president, it recom-
mended a modification in the first clause of the
section detailing the powers of congress that has
been the subject of discussion from that day to
this. The clause as reported by the committee of
detail read: "The Legislature of the United
States shall have the power to lay and collect
taxes, duties, imposts and excises." Thelmodifi-
cation now proposed was to add the words "to
pay the debts and provide for the common de-
fence and general welfare." The change was
at once accepted by the convention unanimously
and apparently without discussion. The ques-
tion concerning it is whether it was intended to
enlarge the powers of congress or to be merely
explanatory of the preceding clause.

Two weeks before, when the assumption of
state debts was under consideration, one of the
forms of wording proposed was "to discharge the
debts of the United States and of the several
states incurred during the late war for the com-
mon defence and general welfare." At the same

FINISHING THE WORK

time the committee of detail in a supplementary
report recommended adding to the first clause of
the powers of congress the explanatory state-
ment "for payment of the debts and necessary
expenses of the United States.55 These two pro-
posals were apparently merged in a clause that
"The Legislature shall fulfil the engagements
and discharge the debts of the United States/'
which was prefixed to the power of taxation.
Shortly afterwards this action was reconsidered
and the clause dropped in the non-committal
compromise: "all debts . . . shall be as valid
against the United States under this constitution
as under the confederation."

When this action was taken Sherman "thought
it necessary to connect with the clause for laying
taxes, duties &c, an express provision for the
object of the old debts and moved to add 'for
the payment of said debts and for the defraying
the expenses that shall be incurred for the com-
mon defence and general welfare/5' Madison
notes that the proposal was considered unneces-
sary and that only Connecticut voted in favor of
it.

Sherman was a member of the committee on
the unfinished parts of the constitution, and it is
noticeable that favored ideas of the individual
members were apt to be recommended by the
committee. Gouverneur Morris was also a

[177]

THE FRAMING OF THE CONSTITUTION

member and as a representative of the moneyed
interests he naturally had been strongly in favor
of a specific obligation to assume the old debts.
These men probably had to do with the phrasing
of the clause first referred to and with its recom-
mendation by the committee. But whatever
interpretation attaches to it, the wording and
punctuation as originally reported and adopted
are unmistakable: "The Legislature shall have
power to lay and collect taxes, duties, imposts
and excises, to pay the debts and provide for the
common defence and general welfare of the
United States."

Two days after this action was taken, Mc-
Henry spoke to several members regarding the
inclusion of a power "enabling the legislature to
erect piers for protection of shipping in winter
and to preserve the navigation of harbours."
Gouverneur Morris was one of those consulted
and while he was in favor of it, he thought it
might be done under the common defence and
general welfare clause. McHenry was evidently
surprised and somewhat wonderingly notes: "If
this comprehends such a power, it goes to author-
ize the legislature to grant exclusive privileges to
trading companies, etc." All of which is inter-
esting and probably important as an indication
of what Morris would have liked to have this
clause mean.

[178]

FINISHING THE WORK

While the convention was still engaged in the
discussion of the presidential compromise, the
committee on unfinished parts of the constitution
also recommended a clause giving exclusive
power to congress over the district for the seat of
government, and another clause authorizing
copyrights and patents. Both of these were
unanimously agreed to.

By Saturday, the 8th of September, the ques-
tions regarding the executive having been settled,
the work of going through the draft of the com-
mittee of detail was practically completed.
Accordingly a committee of five was appointed
"to revise the style of and arrange the articles
which had been agreed to by the house/' The
committee was made up exclusively of friends of
the new constitution, Doctor Johnson, Alexan-
der Hamilton, Gouverneur Morris, James Madi-
son, and Rufus King. On Monday, the 10th,
a brief session seems to have been held to per-
mit the discussion of a few points that were
still unsatisfactory, and the convention then
adjourned to await the report of the committee.

The only important action taken on Monday
related to future amendments of the constitution.
The provision in the draft reported by the com-
mittee of detail — that on the application of the
legislatures of two-thirds of the states, congress
should call a convention for that purpose — had

[179]

THE FRAMING OF THE CONSTITUTION

been unanimously adopted by the convention.
Gerry now asked and obtained consent to have
this reconsidered, because he thought two-thirds
of the states could thus commit the whole union
to dangerous innovations. This move was taken
advantage of by those who desired an easier
method of amendment, to render it possible for
congress to inaugurate amendments whenever
two-thirds of both houses should think it neces-
sary. Gerry evidently wished to require the con-
sent of all the states to adopt an amendment, but
Wilson proposed to require the approval of only
two-thirds. When the latter motion was de-
feated by a majority of one, Wilson immediately
suggested three-fourths and the convention
adopted it unanimously. The proviso was then
added, at the insistence of the extreme southern
states, that no amendments should be made prior
to 1808 that would interfere with the slave trade.
Gerry next moved to amend another section
previously agreed to, so that the approval of
congress would be essential to the adoption of the
new plan. Though supported by Hamilton and
others, the amendment was defeated. Randolph
having previously expressed his doubts concern-
ing the new plan now came out flatly against it
He wanted the new constitution to be trans-
mitted through the medium of congress and state
legislatures to state conventions. Then another

[180]

FINISHING THE WORK

general convention was to be held with full power
to adopt or reject such amendments as might be
proposed by the various state conventions. His
motion embodying these proposals was laid on
the table and the convention adjourned after
instructing the committee of style to prepare an
address to accompany the constitution.

By Wednesday, the committee of style was
ready to make its report, which was at once
ordered printed for the convenience of the dele-
gates. The work done in preparing that report
is probably to be credited to Gouverneur Morris.
Shortly after the convention was over, Baldwin
was visiting his former home in Connecticut and
called on President Stiles* To him Baldwin
stated that the work of this committee was done
by Morris and Wilson. Twenty-seven years
later, Morris wrote to Timothy Pickering that
the constitution "was written by the fingers,
which write this letter." And Madison confirms
this in a letter he wrote shortly before his death
to Jared Sparks: "The finish . . * fairly belongs
to the pen of Mr. Morris. ... A better choice
could not have been made, as the performance
of the task proved. It is true that the state of the
materials . . . was a good preparation . . . but
there was sufficient room for the talents and taste
stamped by the author on the face of it."

A careful comparison of the draft reported by

[181]

THE FRAMING OF THE CONSTITUTION

the committee of style with the proceedings of
the convention would lead one to think that no
undue liberties had heen taken, and yet just a
little suspicion attaches to the work of Morris in
preparing this last draft of the constitution. It
is partly due to intimations that he himself gave,
as in the case already referred to with regard to
the admission of new states, when he wrote : "In
wording the third section of the fourth article,
I went as far as circumstances would permit to
establish the exclusion. Candor obliges me to
add my belief, that, had it been more pointedly
expressed, a strong opposition would have been
made." It is also due to stories that were whis-
pered about in the years following the adoption
of the new constitution. One illustration of that
is to be found in connection with the "general
welfare" clause just considered. In the report
of the committee of style, this clause was sepa-
rated from the preceding and following clauses
by semicolons, thus making it an independent
power of congress. That was not the way in
which it had been adopted by the convention, but
it was more in accordance with Morris's ideas.
The change may or may not have been inten-
tional, but Albert Gallatin a few years later
stated openly in congress that "he was well
informed" that this modification was a "trick"
devised by "one of the members who represented

[182]

FINISHING THE WORK

the State of Pennsylvania." In the constitution
as it was finally engrossed the clause was changed
back to its original form, and the credit for this
Gallatin gave to Sherman.

While they were waiting for the report to be
printed, the convention took up the document to
accompany the constitution and with some slight
changes in wording approved it. The draft of
this is in the handwriting of Gouveraeur Morris
and presumably was composed by him. It took
the form of a letter to congress, and in general
terms stated the problem before the convention
and why it had been necessary to develop "a dif-
ferent organization" of government. The diffi-
culties encountered were hinted at, and "thus the
Constitution, which we now present, is the result
of a spirit of amity and of that mutual deference
and concession which the peculiarity of our politi-
cal situation rendered indispensable." The
constitution was not perfect but that "it may
promote the lasting welfare of that country so
dear to us all, and secure her freedom and
happiness, is our most ardent wish."

Another point discussed was the overruling of
the president's veto, which a month before had
been changed from a two-thirds to a three-
fourths vote. Williamson, who had suggested the
previous change, now proposed to change back
again, as he was convinced two-thirds was the

[183]

THE FRAMING OF THE CONSTITUTION

better proportion. Sherman, Gerry, Mason, and
Pinckney supported Mm, while Gouverneur
Morris, Hamilton, and Madison spoke in oppo-
sition. Madison evidently considered the point
of some importance, for he explained that three-
fourths was agreed to when the president was to
he elected by the legislature and for seven years,
whereas now he was to be elected by the people
and for four years. The two objects of the veto
were to defend the executive rights, and "to
prevent popular or factious injustice." The
experience of the states had demonstrated that
their checks were insufficient. On the whole he
concluded that the "danger from the weakness of
two-thirds" was greater than the "danger from
the strength of three-fourths." In spite of his
plea, the change back to two-thirds was made by
a vote of six states against four, with one state
divided. Madison took pains to record that while
Maryland voted for two-thirds, McHenry of that
state voted against it, and that the vote of Vir-
ginia in the negative was determined by Wash-
ington, Blair, and himself overruling Mason and
Randolph.

Williamson had been a member of the commit-
tee on the unfinished parts of the constitution.
It is possible that he had failed to get the com-
mittee to report certain changes that he wanted
and so now appealed to the convention. At any

[184]

FINISHING THE WORK

rate, having succeeded in obtaining a change in
the provisions concerning the veto he now called
attention to the fact of there being no provision
for juries in civil cases. The records of this dis-
cussion are meager and would not be worthy of
notice, had not the point called out so much
criticism later. From the few statements made
in convention and the many explanations made
afterwards, there can be little doubt that there
was no objection to juries in civil cases. The
difficulty came in attempting to lay down a gen-
eral rule. The practice in the different states
varied, and there were some equity and maritime
cases in which juries were not advisable. As a
matter of fact, the convention was in a hurry to
get through. The end was actually in sight, and
the members did not see how there could be any
danger ij^tfee-matter were left for congress to
attend to. Accordingly nothing was done.

Even Mason consented to the matter being
passed over, especially if some "general prin-
ciples" were laid down. Doubtless with his
beloved Virginia bill of rights in mind, he now
expressed the wish that the constitution might be
prefaced with a similar declaration and he claimed
that it would only take a few hours to prepare it.
Gerry promptly moved for a committee to pre-
pare a bill of rights. Sherman is the only one
recorded as speaking against it, and he merely

[185]

THE FRAMING OF THE CONSTITUTION

said that he thought it unnecessary, as the state
bills of rights were sufficient and they would not
be repealed by the constitution. The convention
voted unanimously against the proposal.

Mason then asked to have the prohibition of
export taxes reconsidered and when this was
granted, he moved that the restriction should not
prevent a state from laying duties on exports for
the sole purpose of meeting the expenses of
inspection, packing, and storing. There was a lit-
tle discussion of this point, but there seemed to be
no serious objection to it provided the power was
sufficiently safeguarded. This was accomplished
by rendering all such regulations subject to the
revision and control of congress. The proviso
was then adopted by a large majority.

On Thursday morning, September 13, the
printed copies of the report of the committee of
style and revision were ready, but before they
could be taken up, Mason "after descanting on
the extravagance of our manners, the excessive
consumption of foreign superfluities, and the
necessity of restricting it, as well with oeconomi-
cal as republican views, . . . moved that a
Committee be appointed to report articles of
Association for encouraging by the advice the
influence and the example of the members of the
Convention, ceconomy frugality and american
manufactures." Doctor Johnson courteously

[186]

FINISHING THE WORK

seconded the motion, and with what was evidently
some impatience the convention agreed to it and
appointed a committee of five, but no report was
ever presented.

Three days were spent by the convention in
carefully comparing each article and section of
the revised draft of the constitution reported by
the committee of style with the proceedings
referred to the committee. In general, the con-
vention heartily approved of the work that had
been done, although as already stated a few dis-
gruntled members afterwards complained of
sharp practices. Even if there were some slight
basis for such charges, the real ground for com-
plaint lay in the fact that the great majority of
the delegates were in favor of the document as it
stood and were impatient at the few members
who were delaying the completion of the work
with what appeared to most of them as only
trivial matters. One finds this sort of a record,
"a number of members being very impatient
and calling for the question" the motion was
promptly voted down.

On the other hand, it was desired that the final
action of the convention should be unanimous.
Accordingly, many concessions were made to con-
ciliate the opposition provided no important
principles were involved. For example, the ulti-
mate congressional control of the^ time, place, and

[187]

THE FRAMING OF THE CONSTITUTION

manner of holding the election of senators and
representatives was limited by inserting " 'except
as to the places of choosing Senators' ... in
order to exempt the seats of Government in the
States from the power of Congress/5 The pro-
hibition of a capitation tax was made to include
any "other direct tax." Accounts of public
receipts and expenditures were ordered to be
published from time to time. Prohibition of
state laws impairing the obligation of contracts,
formerly asked for unavailingly by Rufus King,
had been inserted by the committee of style of
which he was a member and was now accepted by
the convention without question. The appoint-
ment of a treasurer by joint ballot of congress
was also struck out as making an unfortunate
distinction between that officer and others, al-
though Gorham and King thought that the
people were accustomed to having treasurers
appointed in that way and that the innovation
would "multiply objections to the System."

These and other changes were made to concili-
ate the opposition in the convention, but with a
realization that the objections made there were
probably the very ones that would be made when
the constitution came before the people* Some
changes, however, were refused. Requiring a
two-thirds vote for navigation acts before 1808
was defeated by seven states against three. A

F1881

FINISHING THE WORK

proposal to allow an additional member in the
first congress to ^North Carolina and a similar
increase as a sort of bribe to Rhode Island was
voted down. A declaration for freedom of the
press was thought to be unnecessary, as the
power of congress did not extend to the press.
A power to establish a national university free
from religious distinctions was considered to be
included in the power over the seat of govern-
ment, it being assumed that that was where it
would be located. Franklin wanted a specific
power in congress to construct canals. Madison
wished this to be a general power "to incorpo-
rate/' with the direct object of providing for
internal improvements. Objection was made
that the people in Xew York and Philadelphia
would interpret this to mean an intention of
establishing a bank and that in other places they
would think it was intended to establish mercan-
tile monopolies. The canals being regarded as a
concrete case and of the greatest importance, a
question limited to that specific case was taken,
and only Pennsylvania, Virginia, and Georgia
voted for it. Some slight changes were made in
the method of amending the constitution, with an
idea of making that process easier, but they have
proven to be of no importance, because of the
difficulty in overcoming the fundamental require-
ment of obtaining the ratification of three-fourths

[189]

THE FRAMING OF THE COJNbTlTUTJLOJN

of the states. It was also feared that congress
might refuse to act and so congress was required
to call a convention on the application of two-
thirds of the states. Some further suggestions
were made hy Sherman, Gerry, and Brearley
regarding amendments which were all voted
down. But with the idea of conciliation in mind
Gouverneur Morris made a motion which was
"dictated hy the circulating murmurs of the small
States . . . that no State, without its consent
shall be deprived of its equal suffrage in the
Senate."

The articles of confederation formed an agree-
ment "between the States of New Hampshire,
Massachusetts, Rhode Island, ..." and the rest
of the thirteen. At one stage of the development
of its report, the committee of detail tried in the
preamble "We the People of and the States of
New Hampshire, Massachusetts, Rhode Island,"
etc., but later the "and" was dropped out. When
the committee of style took up this point they
found themselves confronted with a new diffi-
culty. The convention had voted that the new
constitution might be ratified by nine states and
should go into effect between the states so ratify-
ing, and no human power could name those states
in advance. How far this was the controlling
factor and what other motives may have been at
work, we have no record. The simple fact

[190]

FINISHING THE WORK

remains that the committee of style cleverly
avoided the difficulty before them by phrasing
the preamble: — "We, the People of the United
States."

Viewed in this light the preamble loses some-
tiling of the importance often ascribed to it, and
yet the opening words remain among the most
significant in the constitution. Such a phrase
would have been impossible at the beginning of
the convention; it was accepted without question
at the end. The convention had come together
to revise the articles of confederation; it ended by
framing an entirely new instrument, the Consti-
tution of the United States.

It was on Saturday, the 15th of September,
that the real work of the convention was brought
to a close and in order to finish it up the conven-
tion continued in session on that day until six
o'clock. At that hour Madison's simple state-
ment is : "On the question to agree to the Consti-
tution, as amended. All the States ay. — The
Constitution was then ordered to be engrossed/*

Just before the vote was taken to agree to the
constitution, Randolph made a last plea for a
second convention to act upon amendments that
might be suggested by individual state conven-
tions. Unless this were done, he said that he
could not sign the constitution then and that lie
might oppose its adoption later. Mason followed

[191]

THE FRAMING OF THE CONSTITUTION

in the same vein, and announced that unless a
second convention were agreed to, he would
neither sign the constitution then, nor give it his
support later in Virginia. Gerry also stated his
objections to the constitution, and thought that
the best thing that could be done was to call a
second convention. But the rest of the delegates
did not agree with these three men. In view of
the troubles they themselves had had, it seemed
doubtful that a second convention, coming
together after discordant instructions from their
sonstituents, could agree upon anything at all.
Accordingly, Randolph's proposal was rejected
unanimously.

On Monday, the 17th, the convention met for
the last time. The engrossed constitution was
read and in order to disguise the fact that a few
of the delegates present were unwilling to sign
the document, Gouverneur Morris devised a form
that would make the action appear to be unani-
mous: "Done in Convention, by the unanimous
consent of the States present the 17th of Sep-
tember ... In Witness whereof we have here-
unto subscribed our names." Thinking that the
idea would meet with a better reception if it came
from some one else than himself, Morris per-
suaded Franklin to present the proposed form of
approval, which Franklin did in a speech urging
harmony and unanimity* Franklin himself was

£192]

FINISHING THE WORK

rather proud of this effoit, and he made several
copies of the speech which he sent to various
friends. It was not long before the speech found
its way into print, and was very favorably
received. Another point of view with regard to
it, however, which also throws some light upon
the contemporary opinion of Franklin, is repre-
sented by the note made by McHenry: "It was
plain, insinuating persuasive — and in any event
of the system guarded the Doctor's fame."

Just before the question was to be put upon the
adoption of the engrossed constitution, Gorham
said that if it was not too late he would like to see
the ratio of representation in the lower house
changed from one for every 40,000 inhabitants to
one for every 30,000. He was supported by
King and Carroll, but there is no reason for sup-
posing that this suggestion would have met with
any different fate now than when previously
made in the convention, especially as it was so
irregular to bring it up at this stage of the pro-
ceedings, unless the motion was "inspired/'
When Washington arose to put the question he
said that although he recognized the impropriety
of his speaking from the chair he felt this amend-
ment to be of so much consequence that "he could
not forbear expressing his wish that the altera-
tion proposed might take place." Without a
single objection being made, the change was then

[193]

THE FRAMING OF THE CONSTITUTION

unanimously agreed to. This was another con-
cession made to forestall popular criticism, but
it may have originated in a suggestion from
Washington and under any circumstances its
adoption was a striking testimony to his influence.

The constitution was then signed hy all the
members present, except Gerry, Mason, and
Randolph. "Whilst the last members were sign-
ing it Doctor Franklin looking towards the
Presidents Chair, at the back of which a rising
sun happened to be painted, observed to a few
members near him, that Painters had found it
difficult to distinguish in their art a rising from a
setting sun. I have, said he, often and often in
the course of the Session, and the vicissitudes of
my hopes and fears as to its issue, looked at that
behind the President without being able to tell
whether it was rising or setting: But now at
length I have the happiness to know that it is a
rising and not a setting Sun*"

It was agreed that the papers of the convention
should be turned over to Washington for safe
keeping subject to the order of congress if ever
formed under the new constitution- The conven-
tion then adjourned &ne die. According to the
local papers, the work was completed about four
o'clock on Monday afternoon, and from the diary
of Washington we know that the "members
adjourned to the City Tavern, dined together

[l&i]

FINISHING THE WORK

and took a cordial leave of each other." The next
day's edition of the Pennsylvania Packet and
Daily Advertiser consisted of nothing but the
new constitution printed in large type. In
those days of limited journalism, there could be
no better indication of contemporary opinion as
to the importance of what the federal convention
had accomplished*

CHAPTER XIII
THE COMPLETED CONSTITUTION

The convention was over; it had completed its
work. In the achievement of its task James
Madison had been unquestionably the leading
spirit. It might be said that he was the master-
builder of the constitution. This is not an over-
valuation of his services derived from his own
account of the proceedings in convention, for
Madison laid no undue emphasis upon the part
he himself played ; in fact, he understated it. Nor
is it intended to belittle the invaluable services of
many other delegates. But when one studies the
contemporary conditions, and tries to discover
how well the men of that time grasped the situa-
tion; and when one goes farther and, in the light
of our subsequent knowledge, seeks to learn how
wise were the remedies they proposed, — Madison
stands pre-eminent. He seems to have lacked
imagination, but this very lack made his work of
peculiar value at the moment. His remedies for
the unsatisfactory state of affairs under the con-
federation, were not founded on theoretical
speculations, they were practical. They were in
accord with the historical development of our

[196]

THE COMPLETED CONSTITUTION

country and in keeping with the genius of our
institutions. The evidence is also strong that
Madison not only took an important part in the
debates but that he was actually looked up to by
both friends and opponents as the leader of those
in the convention who were in favor of a strong
national government.

In these respects, he was in marked contrast to
Alexander Hamilton, who was a stronger man
intellectually, and suggested a more logical and
consistent plan of government than the one which
was followed. But Hamilton was out of touch
with the situation. He was aristocratic rather
than democratic, and while his ideas may have
been excellent, they were too radical for the con-
vention and found but little support. At the
same time, being in favor of a strong national
government, he tried to aid that movement in
every way that he could. But within his delega-
tion he was outvoted by Yates and Lansing, and
before the sessions were half over he was deprived
of a vote altogether by the withdrawal of his col-
leagues. Finding himself of little service he went
to New York and only returned to Philadelphia
once or twice for a few days and to sign the
completed document in September.

Second to Madison and almost on a par with
him was James Wilson. In some respects he
was Madison's intellectual superior, but in the

[197]

THE FRAMING OF THE CONSTITUTION

immediate work before them he was not as
adaptable and not as practical. Still he was
Madison's ablest supporter. He appreciated the
importance of laying the foundations of the new
government broad and deep, and he believed that
this could only be done by basing it upon the
people themselves. This was the principal thing
for which he contended in the convention, and
with a great measure of success. His work on
the committee of detail was less conspicuous but
was also of the greatest service.

-N"ext to these two men should come Washing-
ton. Not that he ever spoke in the convention,
beyond the one recorded instance at the close of
the sessions. But as previously pointed out, per-
sonal influence must have been an important
factor in the outcome of the convention's work,
and Washington's support or opposition would
be of the greatest importance. He voted with
the Virginia delegation, his views were known,
and it is therefore a matter of no little moment
that Washington's support was given to Madi-
son. Madison's ideas were the predominating
factor in the framing of the constitution and it
seems hardly too much to say that Washington's
influence, however it may have been exerted, was
important and perhaps decisive in determining
the acceptance of those ideas by the convention.

Grouvemeur Morris was a conspicuous mem-

[198]

THE COMPLETED CONSTITUTION

her, brilliant but erratic. While lie supported
the efforts for a strong national government, his
support was not always a great help. His best
work in the convention was as the member of the
committee on style and arrangement to whom
was entrusted the final drafting of the constitu-
tion. Charles Pinckney also took a conspicuous
part in the convention, but his work is not to be
classed with that of other and larger minds. It
is undoubtedly true that he suggested a great
many things that were embodied in the constitu-
tion, but they were minor points and details
rather than large, constructive features.

Other members of the convention who deserve
notice, though hardly to be classed with the
names already mentioned, were Rufus "King,
General Charles C. Pinckney, John Rutledge,
Nathaniel Gorham and, in spite of their refusal
to sign the completed constitution, Edmund
Randolph and George Mason. It may seem
surprising that no particular mention is made of
Benjamin Franklin, but it must be remembered
that Franklin was at that time a very old man, so
feeble that Wilson read all of his speeches for
him, and while he was highly respected his opin-
ions do not seem to have carried much weight.
For instance, Madison recorded with regard to
one of Franklin's motions: "It was treated with
great respect, but rather for the author of it, than

[199]

THE FRAMING OF THE CONSTITUTION

from any apparent conviction of its expediency
or practicability/5

Thus far the men who have been considered
were all supporters to a greater or less extent of
a strong national government. On the other
[land were men such as William Paterson, John
Dickinson, Elhridge Gerry, Luther Martin, and
the three Connecticut delegates, Oliver Ells-
worth, William Samuel Johnson, and Roger
Sherman. They were fearful of establishing a
too strongly centralized government, and at one
time or another were to be found in the opposi-
tion to Madison and his supporters. They must
none the less be given great credit for the form
which the constitution finally assumed. They
were not mere obstructionists and, while not con-
structive to the extent that Madison and Wilson
were constructive, it is certain that the constitu-
tion would not have assumed so satisfactory a
form if it had not been for the part taken by
them. Their best service was rendered in re-
straining the tendency of the majority to over-
rule the rights of states and individuals in
endeavoring to establish a thoroughly strong
government.

The document which the convention presented
to congress and to the country as the proposed
new constitution for the United States was a sur-
prise to everybody. No one could have foreseen

[200]

THE COMPLETED CONSTITUTION

the processes by which it had been constructed,
and no one could have foretold the compromises
by which the differences of opinion had been
reconciled, and accordingly no one could have
forecast the result. Furthermore, the construc-
tion of the document was unusual. Wilson and
the committee of detail, and Gouverneur Morris
and the committee of style had done their work
remarkably well. Out of what was almost a
hodge-podge of resolutions they had made a pre-
sentable document, but it was not a logical piece
of work. No document originating as this had
and developed as this had been developed could
be logical or even consistent. That is why every
attempted analysis of the constitution has been
doomed to failure. From the very nature of its
construction the constitution defies analysis upon
a logical basis.

There would seem to be only one way to
explain and only one way to understand the
"bundle of compromises'* known as the constitu-
tion of the United States. John Quincy Adams
described it when he said that it "had been
extorted from the grinding necessity of a reluc-
tant nation/'1 The constitution was a practical
piece of work for very practical purposes. It
was designed to meet certain specific needs. It
was the result of an attempt to remedy the de-

i JuWto of ike Constitution, 1839, p. 55.
[201]

THE FRAMING OF THE CONSTITUTION

fects experienced in the government under the
articles of confederation.

A statement has been made as to what the dele-
gates to the federal convention probably con-
sidered those defects of the confederation to be.
We have seen that in the speech with which he
opened the main business of the convention, Ran-
dolph pointed out the most glaring of these
defects, and that he presented the Virginia plan
as a basis of procedure in providing a remedy for
those defects. We have seen how the Virginia
plan developed step by step into the constitution.
At every stage, suggestions for further remedies
were made from one or another delegate, until
every defect recorded as known to the members
of the convention had been under consideration.

In the completed constitution: the president
had been given the power of veto instead of estab-
lishing a council of revision; the federal courts
instead of congress were to be relied upon to
check improper state legislation; and no specific
powers had been vested in congress to establish
a national bank, to make internal improvements,
or to legislate upon the subject of education.
With these few exceptions, every known defect
of the confederation had been provided for.

On the other hand, there is practically nothing
in the constitution that did not arise out of the
correction of these specific defects of the con-

THE COMPLETED CONSTITUTION

federation. The completed constitution neces-
sarily included many details that would not be
mentioned in any enumeration of defects. Com-
promises had been necessary at every point,
and those compromises in some cases produced
unforeseen results. With those two qualifica-
tions, it would seem to be a safe statement that
the only new element in the constitution, that is,
the only thing not originating in the correction
of the defects noted, was the provision regarding
impeachment. This was such a natural result
when a powerful executive had been established,
that it is hardly worthy of record. It was as
inevitable as it was to place limitations upon the
extensive powers of congress in order to prevent
abuse. When once prescribed for the president,
it was but a step to include the "Vice President
and all civil Officers."

It has long been recognized that the f ramers
of the constitution were indebted to the constitu-
tions of the individual states for many of the
specific provisions in the federal instrument.
But this becomes more significant in the light of
the present study. However much the members
of the federal convention may have prepared
themselves by reading and study, and however
learnedly they might discourse upon govern-
ments, ancient and modern, when it came to con-
crete action they relied almost entirely upon what

[ £03 ]

THE FRAMING OF THE CONSTITUTION

they themselves had seen and done. They were
dependent upon their experience under the state
constitutions and the articles of confederation.
John Dickinson expressed this very succinctly
in the course of the debates, when he said: "Ex-
perience must be our only guide. Reason may
mislead us." In fact, making allowance for the
compromises and remembering that the state con-
stitutions were only a further development of
colonial governments, it is possible to say that
every provision of the federal constitution can be
accounted for in American experience between
1776 and 1787.

The lack of power to establish a national bank
was one of the weaknesses charged against the
government of the confederation. It was not
specifically provided for in the new constitution,
because its importance had not yet been realized.
Hamilton's genius, within a year or two, was able
to wrest its concession from a reluctant congress,
but it required the disastrous financial situation
in the War of 1812 to awaken the nation to the
necessity of some such institution. In the same
way, it was the unexampled spread of population
beyond the Alleghanies, and the consequent
necessity of better means of transportation, that
brought the opposition to acquiesce in national
support of internal improvements, which Wash-
ington had advocated long before the federal con-

[204]

THE COMPLETED CONSTITUTION

vention met, Gouverneur Morris claimed to
have foreseen the acquisition of Louisiana and
Canada and to have embodied in the constitution
a guarded phrase which would permit of their
retention as "provinces, and allow them no voice
in our councils." He claimed that "had it been
more pointedly expressed, a strong opposition
would have been made." Whether or not the
people of the United States in 1803 would have
accepted Morris' point of view and granted the
power he had advocated in 1787, the incident
shows the subterfuges to which a far-sighted
member of the federal convention resorted in
order to provide for possible contingencies
beyond the ken of his fellow delegates.

If, then, the federal constitution was nothing
but the application of experience to remedy a
series of definite defects in the government under
the articles of confederation, it must needs be
that in the short space of time the confederation
had existed experience could not have covered the
whole range of governmental activities. Refer-
ence is not made here to contingencies impossible
to foresee, such as the introduction of steam and
electricity, but there were matters that it would
seem inexplicable not to have provided for in an
instrument of government, if the attempt had
been made to frame a logical and comprehensive
institution.

[£05]

THE FRAMING OF THE CONSTITUTION

The embargo of 1807 and the protective tariff
of 1816 afford illustrations of matters outside the
experience of the confederation and not having
been expressly provided for in the new instru-
ment raised many doubts as to their constitu-
tionality. The great issue of states rights came
forward most dramatically in the concrete cases
of nullification and secession. It would have
been inexpedient to have forced this issue in 1787,
when the fate of any sort of a central government
was doubtful. But these subjects were probably
not even seriously considered at that time; there
certainly is no record of their being mentioned in
the convention. Yet it is inconceivable that if
Madison, or Wilson, or Hamilton had been per-
mitted to frame a logical or consistent instru-
ment of government, a constitution would have
resulted which would not have covered such con-
tingencies. It would seem, then, that the omis-
sions in the constitution furnish a striking proof
of its immediately practical character.

Robert Morris took no active part in the pro-
ceedings of the convention, but having followed
everything that was done with the keenest
interest, he wrote to a friend: "This paper has
been the subject of infinite investigation, dispu-
tation, and declamation. While some have
boasted it as a work from Heaven, others have
given it a less righteous origin. I have many

THE COMPLETED CONSTITUTION

reasons to believe that it is the work of plain,
honest men, and such, I think, it will appear,"

It was this compelling feature, its simplicity5
its practical character, that was responsible for
the final adoption of the constitution when it was
laid before the people of the various states*
Here was a document which every one could
understand. There were differences of opinion,
of course, for such differences are inevitable in
human nature, and convictions were as strong
then as they are now. "In Halifax, Virginia, it
is reported that a preacher on a Sunday morning
had pronounced from the desk a fervent prayer
for the adoption of the federal constitution; but
he had no sooner ended his prayer than a clever
layman ascended the pulpit, invited the people to
join a second time in the supplication, and put
forth an animated petition that the new scheme
be rejected." Moreover, there is no doubt that
the same class of men who may be regarded as
responsible for the calling of the federal conven-
tion are also to be credited with getting the new
constitution adopted. But public opinion, at
least so far as it was represented in the state con-
ventions, was divided, and some had to be won
over. The substance of the argument which pre-
vailed was: Reform is necessary; the new con-
stitution proposes remedies with which all are
familiar; and if the government does not work

[207]

THE FRAMING OF THE CONSTITUTION

\vell, provision is made for changes at any time
and to any extent.

Once adopted, the constitution succeeded
beyond the hopes of its most ardent advocates.
This of course was attributed to virtues inherent
in the instrument itself. Respect and admira-
tion developed and quickly grew into what has
been well termed "the worship of the constitu-
tion." It was this attitude that for so long
obscured the insight into the real character of the
document. And yet, soon after the federal con-
vention was over, Madison himself had stated in
the Federalist: "The truth is, that the great
principles of the Constitution proposed by the
convention may be considered less as absolutely
new, than as the expansion of principles which
are found in the Articles of Confederation. . . .
If the new Constitution be examined with accu-
racy and candor, it will be found that the change
which it proposes consists much less in the addi-
tion of New Powers to the Union, than in the
invigoration of its Original Powers"

The articles of confederation had failed; the
constitution succeeded. The former worked
through the medium of the state governments;
the latter by virtue of the power of taxation and
of control over commerce, dealt directly with the
people. But changes of that sort might have
been engrafted upon the old confederation, with-

[208]

THE COMPLETED CONSTITUTION

out so essentially altering its character. Some-
thing more was necessary, and something more
had been achieved.

A fundamental objection to the old confedera-
tion was the inability of congress to enforce its
decrees. To remedy this had been one of the
chief concerns of the federal convention* The
most obvious provision was the power granted to
congress "to provide for calling forth the Militia
to execute the Laws of the Union." But the
most significant provision was the clause origi-
nating with Luther Martin and modified by the
committee of style to read, "This Constitution
. . . shall be the supreme Law of the Land."
Not a treaty, nor an agreement between sover-
eign states, but a law. It was a law enacted by
the highest of all law-making bodies, the people;
and in its enforcement the government was
backed by all the armed power of the nation; but
the significance is that it was a law, and as such
was enforceable in the courts.

Still this was not enough. Over one hundred
years before, in the preface to the Frame of
Government of Pens&vania, William Penn had
quaintly said: "Governments, like clocks, go
from the motion men give them; and as govern-
ments are made and moved by men, so by them
they are ruined too. Wherefore governments
rather depend upon men than men upon govern-

[209]

THE FRAMING OF THE CONSTITUTION

ments." However radical the differences be-
tween the federal constitution and the articles of
confederation, however sweeping the provisions
of the later document and however carefully they
might be worded, the most potent factor in ren-
dering the new instrument of government effec-
tive was the changed attitude of the American
people. When the federal convention had been
called, trade was already improving though it
was almost unnoticed. By the time the constitu-
tion was adopted and put into operation, the
improved conditions were plainly felt. And so
it came about that in place of opposition or dis-
trust, commercial confidence caused welcome and
support to be extended to the new government.

Neither a work of divine origin, nor "the
greatest work that was ever struck off at a given
time by the brain and purpose of man," but a
practical, workable document is this constitution
of the United States. Planned to meet certain
immediate needs and modified to suit the exi-
gencies of the situation, it was floated on a
wave of commercial prosperity, and it has been
adapted by an ingenious political people to meet
the changing requirements of a century and a
quarter.

[210]

APPENDIX

THE ARTICLES OF CONFEDERATION1

To A:LT, TO WHOM these Presents shall come, we
the undersigned Delegates of the States affixed to our
Names send greeting. Whereas the Delegates of the
United States of America in Congress assembled did
on the fifteenth day of November in the Year of Our
Lord One thousand seven Hundred and Seventy
seven, and in the second Year of the Independence of
America agree to certain articles of. Confederation
and perpetual Union between the States of Newhamp-
shire, Massachusetts-bay, Rhodeisland and Providence
Plantations, Connecticut, New York, New Jersey, Penn-
sylvania, Delaware, Maryland, Virginia, North-Caro-
lina, South-Carolina, and Georgia in the Words follow-
ing, viz. "ARTICUES OP CONFEDERATION and perpetual
Union between the States of Newhampshire, Massa-
chusetts-bay, Bhodeisland and Providence Plantations,
Connecticut, New- York, New-Jersey, Pennsylvania,
Delaware, Maryland, Virginia, North-Carolina, South-
Carolina and Georgia*

i Text taken from American History Leaflets, No. 20, and stated
to have been copied directly from the original manuscripts,

[211]

THE FRAMING OF THE CONSTITUTION

ARTICLE L THE Stile of this confederacy shall be
"TEE UNITED STATES OF AMERICA."

ABTICLE II. EACH state retains its sovereignty, free-
dom and independence, and every Power,, Jurisdiction
and right, which is not by this confederation expressly
delegated to the United States, in Congress assembled.

ARTICLE HE. THE said states hereby severally enter
into a firm league of friendship with each other, for
their common defence, the security of their Liberties,
and their mutual and general welfare, binding them-
selves to assist each other, against all force offered to,
or attacks made upon them, or any of them, on account
of religion, sovereignty, trade, or any other pretence
whatever.

ARTICLE IV. THE better to secure and perpetuate
mutual friendship and intercourse among the people of
the different states in this union, the free inhabitants of
each of these states, paupers, vagabonds, and fugitives
from Justice excepted, shall be entitled to all privileges
and immunities of free citizens in the several states ; and
the people of each state shall have free ingress and
regress to and from any other state, and shall enjoy
therein all the privileges of trade and commerce, subject
to the same duties, impositions and restrictions as the
inhabitants thereof respectively, provided that such
restriction shall not extend so far as to prevent the
removal of property imported into any state, to any
other state of which the Owner is an inhabitant; pro-
vided also that no imposition, duties or restriction shall
be laid by any state, on the property of the united
states, or either of them.

APPENDIX

Iff any Person be guilty of, or charged with treason^
felony, or other high misdemeanor in any state, shall
flee from Justice, and be found in any of the united
states, he shall upon demand of the Governor or execu-
tive power, of the state from which he fled, be delivered
up and removed to the state having jurisdiction of his
offence.

FTJXX. faith and credit shall be given in each of these
states to the records, acts and judicial proceedings of
the courts and magistrates of every other state.

ABTICUE V. FOE the more convenient management of
the general interest of the united states, delegates shall
be annually appointed in such manner as the legislature
of each state shall direct, to meet in Congress on the
first Monday in November, in every year, with a power
reserved to each state, to recal its delegates, or any of
them, at any time within the year, and to send others in
their stead, for the remainder of the Year.

No state shall be represented in Congress by less than
two, nor by more than seven Members ; and no person
shall be capable of being a delegate for more than three
years in any term of six years; nor shall any person,
being a delegate, be capable of holding any office under
the united states, for which he, or another for his benefit
receives any salary, fees or emolument of any kind.

EACH state shall maintain its own delegates in a
meeting of the states, and while they act as members of
the committee of the states.

IN determining questions in the united states, in Con-
gress assembled, each state shall have one vote.

FBEEIDOM of speech and debate in congress shall not

THE FRAMING OF THE CONSTITUTION

be impeached or questioned in any Court, or place out
of Congress, and the members of Congress shall be pro-
tected In their persons from arrests and imprisonments,
during the time of their going to and from, and attend-
ance on congress, except for treason, felony, or breach
of the peace.

ARTICLE VI. No state without the consent of the
united states in congress assembled, shall send any
embassy to, or receive any embassy from, or enter into
any conference, agreement, alliance or treaty with any
King prince or state ; nor shall any person holding any
office of profit or trust under the united states, or any
of them, accept of any present, emolument, office or title
of any land whatever from any king, prince or foreign
state; nor shall the united states in congress assembled,
or any of them, grant any title of nobility.

No two or more states shall enter into any treaty,
confederation or alliance whatever between them, with-
out the consent of the united states in congress assem-
bled, specifying accurately the purpose for which the
same is to be entered into, and how long it shall continue.

No state shall lay any imposts or duties, which may
interfere with any stipulations in treaties, entered into
by the united states in congress assembled, with any
king, prince or state, in pursuance of any treaties
already proposed by congress, to the courts of France
and Spain.

No vessels of war shall be kept up in time of peace by
any state, except such number only, as shall be deemed
necessary by the united states in congress assembled,
for the defence of such state, or its trade; nor shall any

[214]

APPENDIX

body of forces be kept up by any state, in time of peace,
except such number only, as in the judgment of the
united states, in congress assembled, shall be deemed
requisite to garrison the forts necessary for the defence
of such state; but every state shaE always keep up a
well regulated and disciplined militia, sufficiently armed
and accoutred, and shall provide and constantly have
ready for use, in public stores, a due number of field
pieces and tents, and a proper quantity of arms, ammu-
nition and camp equipage.

No state shall engage in any war without the consent
of the united states in congress assembled, unless such
state be actually invaded by enemies, or shall have
received certain advice of a resolution being formed by
some nation of Indians to invade such state, and the
danger is so imminent as not to admit of a delay, till
the united states in congress assembled can be consulted :
nor shall any state grant commissions to any ships or
vessels of war, nor letters of marque or reprisal, except
it be after a declaration of war by the united states in
congress assembled, and then only against the kingdom
or state and the subjects thereof, against which war has
been so declared, and under such regulations as shall be
established by the united states in congress assembled,
unless such state be infested by pirates, in which case
vessels of war may be fitted out for that occasion, and
kept so long as the danger shall continue, or until the
united states in congress assembled shall determine
otherwise.

ARTICLE VII. WHEN land-forces are raised by any
state for the common defence, all officers of or under the

[215]

THE FRAMING OF THE CONSTITUTION

rank of colonel, shall be appointed by the legislature of
each state respectively by whom such forces shall be
raised, or in such manner as such state shall direct, and
all vacancies shall be filled up by the state which first
made the appointment.

ABTICUS VIIL Aix charges of war, and all other
expenses that shall be incurred for the common defence
or general welfare, and allowed by the united states in
congress assembled, shall be defrayed out of a common
treasury, which shall be supplied by the several states,
in proportion to the value of all land within each state,
granted to or surveyed for any Person, as such land and
the buildings and improvements thereon shall be esti-
mated according to such mode as the united states in
congress assembled, shall from time to time, direct and
appoint. The taxes for paying that proportion shall
be laid and levied by the authority and direction of the
legislatures of the several states within the time agreed
upon by the united states in congress assembled.

ABTICUB IX. THE united states in congress assem-
bled, shall have the sole and exclusive right and power
of determining on peace and war, except in the cases
mentioned in the sixth article — of sending and receiving
Ambassadors — entering into treaties and alliances, pro-
vided that no treaty of commerce shall be made whereby
the legislative power of the respective states shall be
restrained from imposing such imposts and duties on
foreigners, as their own people are subjected to, or from
prohibiting the exportation or importation of any
species of goods or commodities whatsoever — of estab-
lishing rales for deciding in all cases, what captures on

[316]

APPENDIX

land or water shall be legal, and in what manner prizes
taken by land or naval forces in the service of the united
states shall be divided or appropriated — of granting
letters of marque and reprisal in times of peace —
appointing courts for the trial of piracies and felonies
committed on the high seas and establishing courts for
receiving and determining finally appeals in all cases of
captures, provided that no member of congress shall be
appointed a judge of any of the said courts.

THE united states in congress assembled shall also be
the last resort on appeal in all disputes and differences
now subsisting or that hereafter may arise between two
or more states concerning boundary, jurisdiction or any
other cause whatever; which authority shall always be
exercised in the manner following. WHENEVER the
legislative or executive authority or lawful agent of any
state in controversy with another shall present a peti-
tion to congress, stating the matter in question and
praying for a hearing, notice thereof shall be given by
order of congress to the legislative or executive author-
ity of the other state in controversy, and a day assigned
for the appearance of the parties by their lawful agents,
who shall then be directed to appoint by joint consent*
commissioners or judges to constitute a court for hear-
ing and determining the matter in question: but if they
cannot agree, congress shall name three persons out of
each of the united states, and from the list of such per-
sons each party shall alternately strike out one, the
petitioners beginning, until the number shall be reduced
to thirteen ; and from that number not less than seven,
nor more than nine names as congress shall direct, shall

[2H]

THE FRAMING OF THE CONSTITUTION

in the presence of congress be drawn out by lot, and the
persons whose names shall be so drawn or any five of
them, shall be commissioners or judges, to hear and
finally determine the controversy, so always as a major
part of the judges who shall hear the cause shall agree
in the determination: and if either party shall neglect
to attend at the day appointed, without shewing reasons,
which congress shall judge sufficient, or being present
shall refuse to strike, the congress shall proceed to
nominate three persons out of each state, and the secre-
tary of congress shall strike in behalf of such party
absent or refusing; and the judgment and sentence of
the court to be appointed, in the manner before pre-
scribed, shall be final and conclusive ; and if any of the
parties shall refuse to submit to the authority of such
court, or to appear or defend their claim or cause, the
sourt shall nevertheless proceed to pronounce sentence,
or judgment, which shall in like manner be final and
decisive, the judgment or sentence and other proceedings
being in either case transmitted to congress, and lodged
among the acts of congress for the security of the
parties concerned: provided that every commissioner,
before he sits in judgment, shall take an oath to be
administered by one of the judges of the supreme or
superior court of the state, where the cause shall be
tried, 4Vefl and truly to hear and determine the matter
in question, according to the best of his judgment,
without favour, affection or hope of reward:" provided
also that no state shall be deprived of territory for the
benefit of the united states.

[218]

APPENDIX

ALL controversies concerning the private right of soil
claimed under different grants of two or more states,
whose jurisdictions as they may respect such lands, and
the states which passed such grants are adjusted, the
said grants or either of them being at the same time
claimed to have originated antecedent to such settle-
ment of jurisdiction, shall on the petition of either party
to the congress of the united states, be finally deter-
mined as near as may be in the same manner as is before
prescribed for deciding disputes respecting territorial
jurisdiction between different states.

THE united states in congress assembled shall also
have the sole and exclusive right and power of regulat-
ing the alloy and value of coin struck by their own
authority, or by that of the respective states — fixing
the standard of weights and measures throughout the
United States — regulating the trade and manageing all
affairs with the Indians, not members of any of the
states, provided that the legislative right of any state
within its own limits be not infringed or violated —
establishing and regulating post-offices from one state
to another, throughout all the united states, and exact-
ing such postage on the papers passing thro* the same
as may be requisite to defray the expences of the said
Ofgce — appointing all officers of the land forces, in the
service of the united states, excepting regimental offi-
cers— appointing all the officers of the naval forces, and
commissioning all officers whatever in the service of the
united states— making rules for the government and
regulation of the said land and naval forces, and direct-
ing their operations*

[219]

THE FRAMING OF THE CONSTITUTION

THE united states in congress assembled shall have
authority to appoint a committee, to sit in the recess of
congress, to be denominated *SA Committee of the
States," and to consist of one delegate from each state ;
and to appoint such other committees and civil officers
as may be necessary for manageing the general affairs
of the united states under their direction — to appoint
one of their number to preside, provided that no person
be allowed to serve in the office of president more than
one year in any term of three years; to ascertain the
necessary sums of Money to be raised for the service of
the united states, and to appropriate and apply the
same for defraying the public expences — to borrow
money, or emit bills on the credit of the united states,
transmitting every half year to the respective states an
account of the sums of money so borrowed or emitted, —
to build and equip a navy — to agree upon the number
of land forces, and to mate requisitions from each
state for its quota, in proportion to the number
of white inhabitants in such state; which requisition
shall be binding, and thereupon the legislature of each
state shall appoint the regimental officers, raise the men
and cloath, arm and equip them in a soldier like manner,
at the expence of the united states; and the officers and
men so cloathed, armed and equipped shall march to the
place appointed, and within the time agreed on by the
united states in congress assembled: But if the united
states in congress assembled shall, on consideration of
circumstances judge proper that any state should not
raise men, or should raise a smaller number than its
quota, and that any other state should raise a greater

[820]

APPENDIX

number of men than the quota thereof, such extra
number shall be raised, officered, cloathed, armed and
equipped in the same manner as the quota of such state,
unless the legislature of such state shall judge that such
extra number cannot be safely spared out of the same,
in which case they shall raise officer, cloath, arm and
equip as many of such extra number as they judge can
be safely spared. AND the officers and men so cloathed,
armed and equipped, shall march to the place appointed,
and within the time agreed on by the united states in
congress assembled.

THE united states in congress assembled shall never
engage in a war, nor grant letters of marque and
reprisal in time of peace, nor enter into any treaties or
alliances, nor coin money, nor regulate the value
thereof, nor ascertain the sums and expences necessary
for the defence and welfare of the united states, or any
of them, nor emit bills, nor borrow money on the credit
of the united states, nor appropriate money, nor agree
upon the number of vessels of war, to be built or pur-
chased, or the number of land or sea forces to be raised,
nor appoint a commander in chief of the army or navy,
unless nine states assent to the same : nor shall a question
on any other point, except for adjourning from day to
day be determined, unless by the votes of a majority of
the united states in congress assembled.

THE congress of the united states shall have power to
adjourn to any time within the year, and to any place
within the united states, so that no period of adjourn*
ment be for a longer duration than the space of six
months, and shall publish the Journal of their proceed-

[221]

"THE FRAMING OF THE CONSTITUTION

ings monthly, except such parts thereof relating to
treaties, alliances or military operations, as in their
judgment require secrecy; and the yeas and nays of the
delegates of each state on any question shall be entered
on the Journal, when it is desired by any delegate ; and
the delegates of a state, or any of them, at his or their
request shall be furnished with a transcript of the said
Journal, except such parts as are above excepted, to
lay before the legislatures of the several states.

ARTICLE X. THE committee of the states, or any
nine of them, shall be authorized to execute, in the recess
of congress, such of the powers of congress as the united
states in congress assembled, by the consent of nine
states, shall from time to time think expedient to vest
them with; provided that no power be delegated to the
said committee, for the exercise of which, by the articles
of confederation, the voice of nine states in the congress
of the united states assembled is requisite.

ARTICLE XL CANADA acceding to this confedera-
tion, and joining in the measures of the united states,
shall be admitted into, and entitled to all the advantages
of this union : but no other colony shall be admitted into
the same, unless such admission be agreed to by nine
states.

AETICLE ~XTL ATVT. bills of credit emitted, monies
borrowed and debts contracted by, or under the author-
ity of congress, before the assembling of the united
states, in pursuance of the present confederation, shall
be deemed and considered as a charge against the united
states, for payment and satisfaction whereof the

[222]

APPENDIX

united states, and the public faith are hereby solemnly
pledged.

ARTICLE XIII. EVERY state shall abide by the
determinations of the united states in congress assem-
bled, on all questions which by this confederation are
submitted to them. AND the Articles of this confedera-
tion shall be inviolably observed by every state, and the
union shall be perpetual ; nor shall any alteration at any
time hereafter be made in any of them; unless such
alteration be agreed to in a congress of the united
states, and be afterwards confirmed by the legislatures
of every state,

AND WHEREAS it hath pleased the Great GOVERNOR
of the World to incline the hearts of the legislatures we
respectively represent in congress, to approve of, and
to authorize us to ratify the said articles of confedera-
tion and perpetual union. KNOW YE that we the under-
signed delegates, by virtue of the power and authority
to us given for that purpose, do by these presents, in
the name and in behalf of our respective constituents,
fully and entirely ratify and confirm each and every of
the said articles of confederation and perpetual union,
and all and singular the matters and things therein
contained: AND we do further solemnly plight and
engage the faith of our respective constituents, that
they shall abide by the determinations of the united
states in congress assembled, on all questions, which by
the said confederation are submitted to them. AND that
the articles thereof shall be inviolably observed by the
states we respectively represent, and that the union
shall be perpetual. IN WITNESS whereof we have here-

[2281

THE FRAMING OF THE CONSTIlTJTION

unto set our hands in Congress. DONE at Philadelphia
in the state of Pennsylvania the ninth Day of July in
the Year of our Lord one Thousand seven Hundred and
Seventy eight, and in the third year of the independence
of America.

On the part &
behalf of the
State of Dela-
•waie

fTho6 H: Zean Feb
12. 1779
John Dickinson, May
5th 1779
. Nicholas VanDyke,

on the part and
behalf of the
State of Mary-
laqrj

John Hanson March
1st 1781
Daniel Carroll, do.

On the Part and
Behalf of the
State of Vir-
ginia

' Hichard Henry Lee
John Bannister
Thomas Adams
Jno Harvie
Francis Lightfoot Lee

on the part and
Behalfof the
State of No.
Carolina

John Penn July 21st
1778
Corns Harnett
JnoTWilliams

On the part and
behalf of the
State of South- '
Carolina

Henry Laurens.
William Henry Dray-
ton
Jno. Mathews
Richd. Hudson
Thos. Hey ward Junr.

On the part and
behalf of the H
State of Geor-
gia 1

Jno Walton 21th. July
1778
Edwd. Telfair.
Edwd. Langworfhy.

Josiah Bartlett,
JohnWentworthJunr }
august 8th, 1778 I

John Hancock.
Samuel Adams
Elbridge Gerry.
Frances Dana
James Lovell
Samuel Holten,

William Ellery
Henry Marchant
John Collins

Roger Sherman

Oliver Wolcott
Titus Hoemer
Andrew Adams
Jas. Duane.
Fras. Lewis
WmDuer
GOUT. Morris,

Jno Wlthergpoon
Nath* Scudder

Rob* Morris.
Daniel Roberdeau
Jon. Bayard Smith
William Clingan
Joseph. Reed, 2!
JuJylTTS

on the part and
behalf of the
' State of Massa-
chusetts Bay

On the part and
behalf of the
State of Rhode-
Is land and Prov-
idence Planta-
tions

on the Part and
behalf of the
State of Con-
necticut

On the Part and
Behalf of the
State of New
York

On the Part an<i
in Behalf of
the .State of
New Jersev.
Norr. 28. 177J

On the part and
behalf of the

. State of Penn-
sylraoia

APPENDIX

n

THE VIRGINIA PLAN

1. Resolved that the articles of Confederation ought
to be so corrected and enlarged as to accomplish the
objects proposed by their institution; namely, "common
defence, security of liberty and general welfare.**

2. Resolved therefore that the rights of suffrage in
the National Legislature ought to be proportioned to
the Quotas of contribution, or to the number of free
inhabitants, as the one or the other rule may seem best
m different cases.

3. Resolved that the National Legislature ought to
consist of two branches.

4. Resolved that the members of the first branch of
the National Legislature ought to be elected by the
people of the several States every for the
term of ; to be of the age of years
at least, to receive liberal stipends by which they may
be compensated for the devotion of their time to public
service; to be ineligible to any office established by a
particular State, or under the authority of the United
States, except those peculiarly belonging to the func-
tions of the first branch, during the term of service, and
for the space of after its expiration; to be
incapable of re-election for the space of

after the expiration of their term of service, and to be
subject to recall.

5, Resolved that the members of the second branch

THE FRAMING OF THE CONSTITUTION

of the National Legislature ought to be elected by those
of the first, out of a proper number of persons nomi-
nated by the individual Legislatures, to be of the age
of years at least; to hold their offices for

a term sufficient to ensure their independency, to receive
liberal stipends, by which they may be compensated for
the devotion of their time to public service ; and to be
ineligible to any office established by a particular State,
or under the authority of the United States, except
those peculiarly belonging to the functions of the sec-
ond branch, during the term of service, and for the
space of after the expiration thereof.

6- Resolved that each branch ought to possess the
right of originating Acts; that the National Legisla-
ture ought to be impowered to enjoy the Legislative
Rights vested in Congress by the Confederation and
moreover to legislate in all cases to which the separate
States are incompetent, or in which the harmony of the
United States may be interrupted by the exercise of
individual Legislation; to negative all laws passed by
the several States, contravening in the opinion of the
National Legislature the articles of Union ; and to call
forth the force of the Union against any member of the
Union failing to fulfill its duty under the articles
thereof.

7, Resolved that a National Executive be instituted ;
to be chosen by the National Legislature for the term
of years, to receive punctually at stated times

a fixed compensation for the services rendered, in
which no increase or diminution shall be made so as to
affect the Magistracy, existing at tbe time of increase

[226]

APPENDIX

or diminution, and to be ineligible a second time; and
that besides a general authority to execute the National
Laws, it ought to enjoy the Executive rights vested in
Congress by the Confederation.

8* Resolved that the Executive and a convenient
number of the National Judiciary, ought to compose a
council of revision with authority to examine every act
of the National Legislature before it shall operate, and
every act of a particular Legislature before a Negative
thereon shall be final; and that the dissent of the said
Council shall amount to a rejection, unless the Act of
the National Legislature be again passed, or that
of a particular Legislature be again negatived by
of the members of each branch.

9. Resolved that a National Judiciary be estab-
lished to consist of one or more supreme tribunals, and
of inferior tribunals to be chosen by the National Legis-
lature, to hold their offices during good behaviour; and
to receive punctually at stated times fixed compensation
for their services, in which no increase or diminution
shall be made so as to affect the persons actually in
office at the time of such increase or diminution, that
the jurisdiction of the inferior tribunals shall be to
hear and determine in the first instance, and of the
supreme tribunal to hear and determine in the dernier
resort, all piracies and felonies on the high seas, cap-
tures from an enemy; cases in which foreigners or
citizens of other States applying to such jurisdictions
may be interested, or which respect the collection of
the National revenue; impeachments of any National

THE FRAMING OF THE CONSTITUTION

officers, and questions which may involve the national
peace and harmony.

10. Resolved that provision ought to be made for
the admission of States lawfully arising within the
limits of the United States, whether from a voluntary
junction of Government and Territory or otherwise,
with the consent of a number of voices in the National
legislature less than the whole.

11. Resolved that a Republican Government and the
territory of each State, except in the instance of a
voluntary junction of Government and territory, ought
to be guaranteed by the United States to each State

12. Resolved that provision ought to be made for
the continuance of Congress and their authorities and
privileges, until a given day after the reform of the
articles of Union shall be adopted, and for the comple-
tion of all their engagements.

13. Resolved that provision ought to be made for
the amendment of the Articles of Union whensoever it
shall seem necessary, and that the assent of the National
Legislature ought not to be required thereto.

14. Resolved that the Legislative Executive and
Judiciary powers within the several States ought to be
bound by oath to support the articles of Union

15. Resolved that the amendments which shall be
offered to the Confederation, by the Convention ought
at a proper time, or times, after the approbation of
Congress to be submitted to an assembly or assemblies
of Representatives, recommended by the several Legis-
latures to be expressly chosen by the people, to consider
and decide thereon.

[828]

APPENDIX

HI
THE NEW JERSEY PLAN

1. Resolved that the articles of Confederation ought
to be so revised, corrected and enlarged, as to render
the federal Constitution adequate to the exigencies of
Government, and the preservation of the Union.

2. Resolved that in addition to the powers vested in
the United States in Congress, by the present existing
articles of Confederation, they be authorized to pass
acts for raising a revenue, by levying a duty or duties
on all goods or merchandizes of foreign growth or
manufacture, imported into any part of the United
States, by Stamps on paper, vellum or parchment, and
by a postage on all letters or packages passing through
the general post-Office, to be applied to such federal
purposes as they shall deem proper and expedient; to
make rules and regulations for the collection thereof;
and the same from time to time, to alter and amend in
such manner as they shall think proper: to pass Acts
for the regulation of trade and commerce as well with
foreign nations as with each other: provided that all
punishments, fines, forfeitures and penalties to be
incurred for contravening such acts rules and regula-
tions shall be adjudged by the Common law Judiclarys
of the State in which any offence contrary to the true
intent and meaning of such Acts rales and regulations
shall have been committed or perpetrated, with liberty
of commencing in the first instance all suits and prose-

[289]

THE FRAMING OF" THE CONSTITUTION

cutions for that purpose in the superior Common law
Judiciary in such State, subject nevertheless, for the
correction of all errors, both in law and fact in render-
ing judgment, to an appeal to the Judiciary of the
United States.

8. Resolved that whenever requisitions shall be
necessary, instead of the rule for making requisitions
mentioned in the articles of Confederation, the United
States in Congress be authorized to make such requisi-
tions in proportion to the whole number of white and
other free citizens and inhabitants of every age sex and
and condition including those bound to servitude for a
term of years and three fifths of all other persons not
comprehended in the foregoing description, except
Indians not paying taxes; that if such requisitions be
not complied with, in the time specified therein, to direct
the collection thereof in the non complying States and
for that purpose to devise and pass acts directing and
authorizing the same ; provided that none of the powers
hereby vested in the United States in Congress shall be
exercised without the consent of at least States,

and in that proportion if the number of Confederated
States should hereafter be increased or diminished.

4. Resolved that the United States in Congress be
authorized to elect a federal Executive to consist of
persons, to continue in office for the term
of years, to receive punctually at stated times

a fixed compensation for their services, in which no
increase or diminution shall be made so as to affect th?
persons composing the Executive at the time of such
increase or dimmutioB, to be paid out of the federal

APPENDIX

treasury; to be incapable of holding any other office
or appointment during their time of service and for
years thereafter; tp be ineligible a second
time, and removeable by Congress on application by a
majority of the Executives of the several States ; that
the Executives besides their general authority to execute
the federal acts ought to appoint all federal officers not
otherwise provided for, and to direct all military opera-
tions ; provided that none of the persons composing the
federal Executive shall on any occasion take command
of any troops, so as personally to conduct any enter-
prise as General, or in other capacity.

5. Resolved that a federal Judiciary be established
to consist of a supreme Tribunal the Judges of which
to be appointed by the Executive, and to hold their
offices during good behaviour, to receive punctually at
stated times a fixed compensation for their services in
which no increase or diminution shall be made, so as to
affect the persons actually in office at the time of such
increase or diminution; that the Judiciary so estab-
lished shall have authority to hear and determine in the
first instance on all impeachments of federal officers,
and by way of appeal in the dernier resort in all cases
touching the rights of Ambassadors, in all cases of cap-
tures from an enemy, in all cases of piracies and felonies
on the high seas, in all cases in which foreigners may be
interested, in the construction of any treaty or treaties,
or which may arise on any of the Acts for regulation of
trade, or the collection of the federal Revenue: that
none of the Judiciary shall during the time they remain
in Office be capable of receiving or holding any other

[281]

THE FRAMING OF THE CONSTITUTION

office or appointment during their time of service, or for
thereafter.

6. Resolved that all Acts of the United States in
Congress made by virtue and in pursuance of the powers
hereby and by the articles of confederation vested in
them, and all Treaties made and ratified under the
authority of the United States shall be the supreme law
of the respective States so far forth as those Acts or
Treaties shall relate to the said States or their Citizens,
and that the Judiciary of the several States shall be
bound thereby in their decisions, any thing in the
respective laws of the Individual States to the contrary
notwithstanding; and that if any State, or any body
of men in any State shall oppose or prevent the carrying
into execution such acts or treaties, the federal Execu-
tive shall be authorized to call forth the power of the
Confederated States, or so much thereof as may be
necessary to enforce and compel an obedience to such
Acts, or an Observance of such Treaties.

7. Resolved that provision be made for the admis-
sion of new States into the Union.

8. Resolved the rule for naturalization ought to be
the same in every State

9. Resolved that a Citizen of one State committing
an offence in another State of the Union, shall be
deemed guilty of the same offence as if it had been com-
mitted by a Citizen of the State in which the Offence
was committed.

[288]

APPENDIX

THE CONSTITUTION OF THE UNITED
STATES

WE THE PEOPLE of the United States, in Order to
form a more perfect Union, establish Justice, insure
domestic Tranquility, provide for the common defence,
promote the general Welfare, and secure the Blessings
of Liberty to ourselves and our Posterity, do ordain and
establish this Constitution for the United States of
America*

ABTICLE. L

Section. 1. All legislative Powers herein granted
shall be vested in a Congress of the United States, which
shall consist of a Senate and House of Representatives.

Section. 2. The House of Representatives shall be
composed of Members chosen every second Year by the
People of the several States, and the Electors in each
State shall have (the) Qualifications requisite for Elec-
tors of the most numerous Branch of the State Legis-
lature.

No Person shall be a Representative who shall not
have attained to the Age of twenty five Years, and been
seven Years a Citizen of the United States, and who
shall not, when elected, be an Inhabitant of that State
in which he shall be chosen.

Representatives and direct Taxes shall be appor-
tioned among the several States which may be included

[288]

THE FRAMING OF THE CONSTITUTION

within this Union, according to their respective Num-
bers, which shall be determined by adding to the whole
Number of free Persons, including those bound to Ser-
vice for a Term of Years, and excluding Indians not
taxed, three fifths of all other Persons. The actual
Enumeration shall be made within three Years after
the first Meeting of the Congress of the United States,
and within every subsequent Term of ten Years, in such
Manner as they shall by Law direct. The Number of
Representatives shall not exceed one for every (thirty)
Thousand, but each State shall have at Least one
Representative; and until such enumeration shall be
made, the State of New Hampshire shall be entitled to
chuse three, Massachusetts eight, Rhode-Island and
Providence Plantations one, Connecticut five, New-York
six, New Jersey four, Pennsylvania eight, Delaware one,
Maryland six, Virginia ten, North Carolina five, South
Carolina five, and Georgia three.

When vacancies happen in the Representation from
any State, the Executive Authority thereof shall issue
Writs of Election to fill such Vacancies.

The House of Representatives shall chuse their
Speaker and other Officers; and shall have the sole
Power of Impeachment.

Section. 3. The Senate of the United States shall
be composed of two Senators from each State, chosen
fay the Legislature thereof, for six Years; and each
Senator shafl have one Vote.

Immediately after they shall be assembled in Conse-
quence of the first Election, they shall be divided as
equally as may be into three Classes. The Seats of the

[284]

APPENDIX

Senators of the first Class shall be vacated at the Expi-
ration of the second Year, of the second Class at the
Expiration of the fourth Year, and of the third Class
at the Expiration of the sixth Year, so that one third
may be chosen every second Year; and if Vacancies
happen by Resignation, or otherwise, during the Recess
of the Legislature of any State, the Executive thereof
may make temporary Appointments until the next
Meeting of the Legislature, which shall then fill such
Vacancies.

No Person shall be a Senator who shall not have
attained to the Age of thirty Years, and been nine
Years a Citizen of the United States, and who shall not,
when elected, be an inhabitant of that State for which
he shall be chosen.

The Vice President of the United States shall be
President of the Senate, but shall have no Vote, unless
they be equally divided.

The Senate shall chuse their other Officers, and also
a President pro tempore, in the Absence of the Vice
President, or when he shall exercise the Office of Presi-
dent of the United States.

The Senate shall have the sole Power to try all
Impeachments. When sitting for that Purpose, they
shall be on Oath or Affirmation. When the President
of the United States (is tried,) the Chief Justice shall
preside: And no Person shall be convicted without the
Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend
further than to removal from Office, and disqualification
to hold and enjoy any Office of honor, Trust or Profit

[285]

THE FRAMING OF THE CONSTITUTION

under the United States : but the Party convicted shall
nevertheless be liable and subject to Indictment, Trial,
Judgment and Punishment, according to Law.

Section. 4. The Times, Places and Manner of hold-
ing Elections for Senators and Representatives, shall
be prescribed in each State by the Legislature thereof ;
but the Congress may at any time by Law make or
alter such Regulations, except as to the Places of
chusing Senators.

The Congress shall assemble at least once in every
Year, and such Meeting shall be on the first Monday in
December, unless they shall by Law appoint a different
Day.

Section. 5. Each House shall be the Judge of the
Elections, Returns and Qualifications of its own Mem-
bers, and a Majority of each shall constitute a Quorum
to do Business; but a smaller Number may adjourn
from day to day, and may be authorized to compel the
Attendance of absent Members, in such Manner, and
under such Penalties as each House may provide.

Each House may determine the Rules of its Pro-
ceedings, punish its Members for disorderly Behaviour,,
and, with the Concurrence of two thirds, expel a,
Member.

Each House shall keep a Journal of its Proceedings,,
and from time to time publish the same, excepting such
Parts as may in their Judgment require Secrecy; and
the Yeas and Nays of the Members of either House on
any question shall, at the Desire of one fifth of those
Present, be entered on the Journal.

[286]

APPENDIX

Neither House, during the Session of Congress, shall,
without the Consent of the other, adjourn for more than
three days, nor to any other Place than that in which
the two Houses shall be sitting.

Section. 6. The Senators and Representatives shall
receive a Compensation for their Services, to be ascer-
tained by Law, and paid out of the Treasury of the
United States. They shall in all Cases, except Treason,
Felony and Breach of the Peace, be privileged from
Arrest during their Attendance at the Session of their
respective Houses, and in going to and returning from
the same; and for any Speech or Debate in either
House, they shall not be questioned in any other Place.

No Senator or Representative shall, during the Time
for which he was elected, be appointed to any civil Office
under the Authority of the United States, which shall
have been created, or the Emoluments whereof shall
liave been encreased during such time; and no Person
holding any Office under the United States, shall be a
Member of either House during his Continuance in
Office.

Section. 7. All Bills for raising Revenue shall
originate in the House of Representatives; but the
Senate may propose or concur with Amendments as on
other Bills.

Every Bill which shall have passed the House of
Representatives and the Senate, shall, before it become
a Law, be presented to the President of the United
States ; If he approve he shall sign it, but if not he shall
return it, with his Objections to that House in which it
shall have originated, who shall enter the Objections at

[237]

THE FRAMING OF THE CONSTITUTION

large on their Journal, and proceed to reconsider it.
If after such Reconsideration two thirds of that House
shall agree to pass the Bill, it shall be sent, together
with the Objections, to the other House, by which it
shall likewise be reconsidered, and if approved by two
thirds of that House, it shall become a Law. But in all
such Cases the Votes of both Houses shall be determined
by yeas and Nays, and the Names of the Persons voting
for and against the Bill shall be entered on the Journal
of each House respectively. If any Bill shall not be
returned by the President within ten Days (Sundays,
excepted) after it shall have been presented to him, the
Same shall be a Law, in like Manner as if he had signed
it, unless the Congress by their Adjournment prevent
its Return, in which Case it shall not be a Law.

Every Order, Resolution, or Vote to which the Con-
currence of the Senate and House of Representatives-
may be necessary (except on a question of Adjourn-
ment) shall be presented to the President of the United
States ; and before the Same shall take Effect, shall be
approved by him, or being disapproved by him, shall be
repassed by two thirds of the Senate and House of
Representatives, according to the Rules and Limita-
tions prescribed in the Case of a Bill.

Section. 8. The Congress shall have Power To lay
and collect Taxes, Duties, Imposts and Excises, to pay
the Debts and Provide for the common Defence and
general Welfare of the United States ; but all Duties,,
Imposts and Excises shall be uniform throughout the
United States;

[338]

APPENDIX

To borrow Money on the credit of the United States ;

To regulate Commerce with foreign Nations, and
among the several States, and with the Indian Tribes ;

To establish an uniform Rule of Naturalization, and
uniform Laws on the subject of Bankruptcies through-
out the United States ;

To coin Money, regulate the Value thereof, and of
foreign Coin, and fix the Standard of Weights and
Measures ;

To provide for the Punishment of counterfeiting the
Securities and current Coin of the United States ;

To establish Post Offices and post Roads ;

To promote the Progress of Science and useful Arts,
by securing for limited Time to Authors and Inventors
the exclusive Right to their respective Writings and
Discoveries ;

To constitute Tribunals inferior to the supreme
Court;

To define and punish Piracies and Felonies committed
on the high Seas, and Offences against the Law of
Nations ;

To declare War, grant Letters of Marque and
Reprisal, and make Rules concerning Captures on Land
and Water ;

To raise and support Armies, but no Appropriation
of Money to that Use shall be for a longer Term than
two Years ;

To provide and maintain a Navy ;

To make Rules for the Government and Regulation
of the land and naval Forces ;

To provide for calling forth the MiJit-ia te execute

[£39]

THE FRAMING OF THE CONSTITUTION

the Laws of the Union, suppress Insurrections and
repel Invasions;

To provide for organizing, arming, and disciplining,
the Militia, and for governing such Part of them as
may be employed in the Service of the United States,
reserving to the States respectively, the Appointment
of the Officers, and the Authority of training the Militia
according to the discipline prescribed by Congress ;

To exercise exclusive Legislation in all Cases whatso-
ever, over such District (not exceeding ten Miles
square) as may, by Cession of Particular States, and
the Acceptance of Congress, become the Seat of the
Government of the United States, and to exercise like
Authority over all Places purchased by the Consent of
the Legislature of the State in which the Same shall be,
for the Erection of Forts, Magazines, Arsenals, dock-
Yards, and other needful Buildings ; — And

To make all Laws which shall be necessary and
proper for carrying into Execution the foregoing
Powers, and all other Powers vested by this Constitu-
tion in the Government of the United States, or in any
Department or Officer thereof.

Section. 9. The Migration or Importation of such
Persons as any of the States now existing shall think
proper to admit, shall not be prohibited by the Con-
gress prior to the Year one thousand eight hundred
and eight, but a Tax or duty may be imposed on such
Importation, not exceeding ten dollars for each Person.
The Privilege of the Writ of Habeas Corpus shall
not be suspended, unless when in Cases of Rebellion
or Invasion the public Safety may require it.

[2*0]

APPENDIX

No Bill of Attainder or ex post facto Law shall be
passed.

No Capitation, or other direct. Tax shall be laid,
unless in Proportion to the Census or Enumeration
herein before directed to be taken.

No Tax or Duty shall be laid on Articles exported
from any State.

No Preference shall be given by any Regulation of
Commerce or Revenue to the Ports of one State over
those of another: nor shall Vessels bound to, or from,
one State, be obliged to enter, clear, or pay Duties in
another.

No Money shall be drawn from the Treasury, but in
Consequence of Appropriations made by Law; and a
regular Statement and Account of the Receipts and
Expenditures of all public Money shall be published
from time to time.

No Title of Nobility shall be granted by the United
States : And no Person holding any Office of Profit or
Trust under them, shall, without (the) Consent of the
Congress, accept of any present, Emolument, Office, or
Title, of any kind whatever, from any King, Prince, on
foreign State.

Section. 10. No State shall enter into any Treaty,
Alliance, or Confederation; grant Letters of Marque
and Reprisal ; coin Money ; emit Bills of Credit ; make
any Thing but gold and silver Coin a Tender in Pay-
ment of Debts; pass any Bill of Attainder, ex post
facto Law, or Law impairing the Obligation of Con-
tracts, or grant any Title of Nobility.

No State shall, without the Consent of (the) Con-

[241]

THE FRAMING OF THE CONSTITUTION

gress, lay any Imposts or Duties on Imports or Exports,
except what may be absolutely necessary for executing
it's inspection Laws : and the net Produce of all Duties
and Imposts, laid by any State on Imports or Exports*
shall be for the Use of the Treasury of the United
States; and all such Laws shall be subject to the Re-
vision and Controul of (the) Congress.

No State shall, without the Consent of Congress, lay
any Duty of Tonnage, keep Troops, or Ships of War in
time of Peace, enter into any Agreement or Compact
with another State, or with a foreign Power, or engage
in War, unless actually invaded, or in such imminent
Danger as will not admit of delay.

AKTICLE. II.

Section. 1. The executive Power shall be vested in
a President of the United States of America. He shall
hold his Office during the Term of four Years, and,
together with the Vice President, chosen for the same
Term, be elected, as follows

Each State shall appoint, in such Manner as the
Legislature thereof may direct, a Number of Electors,
equal to the whole Number of Senators and Representa-
tives to which the State may be entitled in the Congress :
but no Senator or Representative, or Person holding an
Office of Trust or Profit under the United States, shall
be appointed an Elector.

The Electors shall meet in their respective States,
and vote by Ballot for two Persons, of whom one at
least shall not be an Inhabitant of the same State with

[242]

APPENDIX

themselves. And they shall make a List of all the
Persons voted for, and of the Number of Votes for
each ; which List they shall sign and certify, and trans-
mit sealed to the Seat of the Government of the United
States, directed to the President of the Senate. The
President of the Senate shall, in the Presence of the
Senate and House of Representatives, open all the
Certificates, and the Votes shall then be counted. The
Person having the greatest Number of Votes shall be
the President, if such Number be a Majority of the
whole Number of Electors appointed; and if there be
more than one who have such Majority, and have an
equal Number of Votes, then the House of Representa-
tives shall immediately chuse by Ballot one of them for
President ; and if no Person have a Majority, then from
the five highest on the List the said House shall in like
Manner chuse the President. But in chusing the Presi-
dent, the Votes shall be taken by States, the Represen-
tation from each State having one Vote ; A quorum for
this Purpose shall consist of a Member or Members from
two thirds of the States, and a Majority of all the
States shall be necessary to a Choice. In every Case,,
after the Choice of the President, the Person having the
greatest Number of Votes of the Electors shall be the
Vice President. But if there should remain two or more
who have equal Votes, the Senate shall chuse from them
by Ballot the Vice President.

The Congress may determine the Time of chusing
the Electors, and the Day on which they shall give
their Votes; which Day shall be the same throughout
the United States.

P2431

THE FRAMING OF THE CONSTITUTION

No Person except a natural born Citizen, or a Citizen
of the United States, at the time of the Adoption of this
Constitution, shall be eligible to the Office of President ;
neither shall any Person be eligible to that Office who
shall not have attained to the Age of thirty five Years,
and been fourteen Years a Resident within the United
States.

In Case of the Removal of the President from Office,
or of his Death, Resignation, or Inability to discharge
the Powers and Duties of the said Office, the Same
shall devolve on the Vice President, and the Congress
may by Law provide for the Case of Removal, Death,
Resignation or Inability, both of the President and
Vice President, declaring what Officer shall then act as
President, and such Officer shall act accordingly, until
the Disability be removed, or a President shall be
elected.

The President shall, at stated Times, receive for his
Services, a Compensation, which shall neither be en-
creased nor diminished during the Period for which he
shall have been elected, and he shall not receive within
that Period any other Emolument from the United
States, or any of them.

Before he enter on the Execution of his Office, he
shall take the following Oath of Affirmation: — "I do
solemnly swear (or affirm) that I will faithfully execute
the Office of President of the United States, and will to
the best of my Ability, preserve, protect and defend the
Constitution of the United States."

Section 2. The President shall be Commander in
Chief of the Army and Navy of the United States, and

[244]

APPENDIX

of the Militia of the several States, when called into the
actual Service of the United States ; he may require the
Opinion, in writing, of the principal Officer in each of
the executive Departments, upon any Subject relating
to the Duties of their respective Offices, and he shall
have Power to grant Reprieves and Pardons for
Offences against the United States, except in Cases of
Impeachment.

He shall have Power, by and with the Advice and
Consent of the Senate, to make Treaties, provided two
thirds of the Senators present concur; and he shall
nominate, and by and with the Advice and Consent of
the Senate, shall appoint Ambassadors, other public
Ministers and Consuls, Judges of the supreme Court,
and all other Officers of the United States, whose
appointments are not herein otherwise provided for,
and which shall be established by Law: but the Congress
may by Law vest the Appointment of such inferior
Officers, as they think proper, in the President alone,
in the Courts of Law, or in the Heads of Departments.
The President shall have Power to fill up all Vacan-
cies that may happen during the Recess of the Senate,
by granting Commissions which shall expire at the End
of their next Session.

Section. 3. He shall from time to time give to the
Congress Information of the State of the Union, and
recommend to their consideration such Measures as he
shall judge necessary and expedient; he may, on
extraordinary Occasions, convene both Houses, or either
of them, and in Case of Disagreement between them,
with Respect to the Time of Adjournment, he may

[245]

THE FRAMING OF THE CONSTITUTION

adjourn them to such Time as he shall think proper;
he shall receive Ambassadors and other public Minis-
ters; he shall take Care that the Laws be faithfully
executed, and shall Commission all the Officers of the
United States.

Section. 4. The President, Vice President and all
civil Officers of the United States, shall be removed
from Office on Impeachment for, and conviction of,
Treason, Bribery, or other high Crimes and Misde-
meanors.

ARTICLE. III.

Section 1. The judicial Power of the United
States, shall be vested in one supreme Court, and in such
inferior Courts as the Congress may from time to time
ordain and establish. The Judges, both of the supreme
and inferior Courts, shall hold their Offices during good
Behaviour, and shall, at stated Times, receive for their
Services, a Compensation, which shall not be diminished
during their Continuance in Office.

Section &. The judicial Power shall extend to all
Cases, in Law and Equity, arising under this Constitu-
tion, the Laws of the United States, and Treaties made,
or which shall be made, under their Authority ; — to all
Cases affecting Ambassadors, other public Ministers
and Consuls; — to all Cases of admiralty and maritime
Jurisdiction; — to Controversies to which the United
States shall be a Party ; — to Controversies between two
or more States; — between a State and Citizens of
another State ; — between Citizens of different States, —
between Citizens of the same State claiming Lands under

[246]

APPENDIX

Grants of different States, and between a State, or the
Citizens thereof, and foreign States, Citizens or
Subjects.

In all Cases affecting Ambassadors, other public
Ministers and Consuls, and those in which a State shall
be Party, the supreme Court shall have original Juris-
diction. In all the other Cases before mentioned, the
supreme Court shall have appellate Jurisdiction, both
as to Law and Fact, with such Exceptions, and under
such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeach-
ment, shall be by Jury ; and such Trial shall be held in
the State where the said Crimes shall have been com-
mitted ; but when not committed within any State, the
Trial shall be at such Place or Places as the Congress
niay by Law have directed.

Section. 3. Treason against the United States,
shall consist only in levying War against them, or in
adhering to their Enemies, giving them Aid and Com-
fort. No Person shall be convicted of Treason unless
on the Testimony of two Witnesses to the same overt
Act, or on Confession in open Court.

The Congress shall have Power to declare the Pun-
ishment of Treason, but no Attainder of Treason shall
work Corruption of Blood, or Forfeiture except during
the Life of the Person attainted.

ARTICLE. IV.

Section, 1. Full Faith and Credit shall be given ur
each State to the public Acts, Records, and judicial
Proceedings of every other State. And the Congress

[247]

THE FRAMING OF THE CONSTITUTION

by general Laws prescribe the Manner in which
such Acts, Records and Proceedings shall be proved,
and the Effect thereof.

Section. 2. The Citizens of each State shall he
entitled to all Privileges and Immunities of Citizens in
the several States.

A Person charged in any State with Treason, Felony,
or other Crime, who shall flee from Justice, and be found
in another State, shall on Demand of the executive
Authority of the State from which he fled, be delivered
up, to be removed to the State having Jurisdiction of
the Crime.

No Person held to Service or Labour in one State,
under the Laws thereof, escaping into another, shall,
in Consequence of any Law or Regulation therein, be
discharged from such Service or Labour, but shall be
delivered up on Claim of the Party to whom such
Service or Labour may be due.

Section. 3. New States may be admitted by the
Congress into this Union; but no new State shall be
formed or erected within the Jurisdiction of any other
State ; nor any State be formed by the Junction of two
or more States, or Parts of States, without the Consent
of the Legislatures of the States concerned as well as
of the Congress.

The Congress shall have Power to dispose of and
make all needful Rules and Regulations respecting the
Territory or other Property belonging to the United
States ; and nothing in this Constitution shall be so con-
strued as to Prejudice any Claims of the United States,
or of any particular State.

[248]

APPENDIX

Section. 4. The United States shall guarantee to
every State in this Union a Republican Form of Gov-
ernment, and shall protect each of them against Inva-
sion ; and on Application of the Legislature, or of the
Executive (when the Legislature cannot be convened)
against domestic Violence.

ARTICLE. V.

The Congress, whenever two thirds of both Houses
shall deem it necessary, shall propose Amendments to
this Constitution, or, on the Application of the Legis-
latures of two thirds of the several States, shall call a
Convention for proposing Amendments, which, in either
Case, shall be valid to all Intents and Purposes, as Part
of this Constitution, when ratified by the Legislatures
of three fourths of the several States, or by Conventions
in three fourths thereof, as the one or the other Mode
of Ratification may be proposed by the Congress ; Pro-
vided that no Amendment which may be made prior to
the Year One thousand eight hundred and eight shall
in any Manner affect the first and fourth Clauses in
the Ninth Section of the first Article ; and that no State,
without its Consent, shall be deprived of it's equal
Suffrage in the Senate.

ARTICLE. VI.

All Debts contracted and Engagements entered into,
before the Adoption of this Constitution, shall be as
valid against the United States under this Constitution,
as under the Confederation.

[249]

THE FRAMING OF THE CONSTITUTION

This Constitution, and the Laws of the United States
which shall be made in Pursuance thereof; and all
Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme
Law of the Land; and the Judges in every State shall
be bound thereby, any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned,
and the Members of the several State Legislatures, and
all executive and judicial Officers, both of the United
States and of the several States, shall be bound by Oath
or Affirmation, to support this Constitution; but no
religious Test shall ever be required as a Qualification to
any Office or public Trust under the United States.

ARTICLE. VII.

The Ratification of the Conventions of nine States,
shall be sufficient for the Establishment of this Con-
stitution between the States so ratifying the Same.

The Word "the," being inter- DONE £n Convention by

lined between the seventh and ^ Unanimous Congent
eighth Lines of the first Page,

the word "Thirty" being partly of the States Present the

written on an Erasure in the Seventeenth Day of

fifteenth Line of the first Page. September in the Year

The words "is tried" being inter- of our Lor(j Qne foou_

lined between the thirty-second , , j , ..

and thirty-third Lines of the sand seven hundred and

first Page and the Word "the" Eighty seven and of

feeing interlined between the the Independence of the

[250]

APPENDIX

forty-third and forty-fourth
Lines of the second Page.
[These corrections are indicated
in the text by parentheses.]

Attest William Jackson, Secretary.

GeotRead

Jaco- Broom

James McHenry

Dan of St Thos. Jenifer

DanL Carroll.
(John Blair —
\ James Madison Jr.

{Win. Blount
Richd. Bobbs Spalght.
Hu Williamson
f J.Rutledge
I Charles Ootesworth

Delaware

Maryland
Virginia

North Carolina

South Carolina j OiariesJPinckney

United States of Amer-
ica the Twelfth IN WIT-
NESS whereof We have
hereunto subscribed our
Names,

Go. Washington— Prestdt. and deputy
from Virginia.

Georgia

I Pierce Butler.
( William Fe v
lAbr Baldwin

New Hampshire
llassachusetts

Connecticut
NewTorfc . .

Now Jersey

Peneylvanla

John Langdon

Nicholas urilman
( Nathaniel Gorham
1 Rufas King
f Wm • Saml. Johnson
i Roger Sherman
, Alexander Hamilton,

Wtl: Livingston

David Brearley.

Wm. Paterson.

Jona:Dayton

B Franklin

Thomas Mlfflin

Robt Morris

Geo. Clymer

Thos. FitzsimoziB

Jared Ingersoll

James Wilson

Gouv Morris

THE FRAMING OF THE CONSTITUTION

THE AMENDMENTS TO THE CONSTITUTION1

[ARTICLES in addition to and Amendment of the
Constitution of the United States of America, proposed
by Congress, and ratified by the Legislatures of the
several States, pursuant to the fifth Article of the
original Constitution.]2

[ARTICLE L]»

Congress shall make no law respecting an establish-
ment of religion, or prohibiting the free exercise thereof ;
or abridging the freedom of speech, or of the press ; or
the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances.

[ARTICLE II.]

A well regulated Militia, being necessary to the
security of a free State, the right of the people to keep
and bear Arms, shall not be infringed.

1 Texts taken from American History Leaflets, No. 8, and
stated to have been copied directly from the original manuscripts.

2 This heading appears only in the joint resolution of congress
submitting the first ten amendments.

3 In the original manuscripts the first twelve amendments have
no numbers, The first ten amendments appear to have been in
force from November 8, 17P"* .

[ 252 |

APPENDIX

[ARTICLE IIL]

No Soldier shall, in time of peace be quartered in any
house, without the consent of the Owner, nor in time of
war, but in a manner to be prescribed by law.

[ARTICLE IV.]

The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, sup-
ported by Oath or affirmation, and particularly describ-
ing the place to be searched, and the persons or things
to be seized.

[ARTICLE V.]

No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury except in cases arising in
the land or naval forces, or in the Militia, when in actual
service in time of War or public danger; nor shall any
person be subject for the same offence to be twice put in
jeopardy of life or Kmb; nor shall be compelled in any
criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due pro-
cess of law; nor shall private property be taken for
public use, without just compensation.

[ARTICLE VI.]

In all criminal prosecutions the accused shall enjoy
the right to a speedy and public trial, by an impartial

[253]

THE FRAMING OF THE CONSTITUTION

jury of the State and district wherein the crime shall
have been committed, which district shall have been
previously ascertained by law, and to be informed of the
nature and cause of the accusation; to be confronted
with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to have
the Assistance of Counsel for his defence.

[ARTICLE VH.]

In suits at common law, where the value in contro-
versy shall exceed twenty dollars, the right of trial by
jury shall be preserved, and no fact tried by a jury
shall be otherwise re-examined in any Court of the
United States, than according to the rules of the
common law.

[ARTICLE Vni.]

Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.

[ARTICLE IX.]

The enumeration in the Constitution, of certain
rights, shall not be construed to deny or disparage
others retained by the people.

[ARTICLE X.]

The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, ar*
reserved to the States respectively or to the people.

[254]

APPENDIX

[AHTICLE XL]4

The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, com-
menced or prosecuted against one of the United States
by Citizens of another State, or by Citizens or Subjects
of any Foreign State.

[ARTICLE XII.]5

The Electors shall meet in their respective states, and
vote by ballot for President and Vice-President, one of
whom, at least, shall not be an inhabitant of the same
state with themselves ; they shall name in their ballots
the person voted for as President, and in distinct ballots
the person voted for as Vice-President, and they shall
make distinct lists of all persons voted for as President,
and of all persons voted for as Vice-President, and of
the number of votes for each, which lists they shall sign
and certify, and transmit sealed to the seat of the gov-
ernment of the United States, directed to the President
of the Senate; — The President of the Senate shall, in
the presence of the Senate and House of Representa-
tives, open all the certificates and the votes shall then be
counted; — The person having the greatest number of
votes for President, shall be the President, if such
number be a majority of the whole number of Electors
appointed; and if no person have such majority, then
from the persons having the highest numbers not
exceeding three on the list of those voted for as Presi-
dent, the House of Representatives shall choose imme-

* Proclaimed to be in force January 8, 1798.

5 Proclaimed to be in force September 25, 1804.

[255]

THE FRAMING OF THE CONSTITUTION

diatcly, by ballot, the President. But in choosing the
President, the votes shall be taken by states, the repre-
sentation from each state having one vote ; a quorum for
this purpose shall consist of a member or members from
two-thirds of the states, and a majority of all the states
shall be necessary to a choice. And if the House of
Representatives shall not choose a President whenever
the right of choice shall devolve upon them, before tha
fourth day of March next following, then the Vice-
President shall act as President, as in the case of the
death or other constitutional disability of the President.
— The person having the greatest number of votes as
Vice-President, shall be the Vice-President, if such
number be a majority of the whole number of Electors
appointed, and if no person have a majority, then from
the two highest numbers on the list, the Senate shall
choose the Vice-President; a quorum for the purpose
shall consist of two-thirds of the whole number of Sena-
tors, and a majority of the whole number shall be neces-
sary to a choice. But no person constitutionally
ineligible to the office of President shall be eligible to
that of Vice-President of the United States.

ARTICLE XIH.*

SECTION 1. Neither slavery nor involuntary servi-
tude, except as a punishment for crime whereof the
party shall have been duly convicted, shall exist within
the United States, or any place subject to their juris-
diction. SECTION 2. Congress shall have power to
enforce this article by appropriate legislation.
* Proclaimed to be in force December 18, 1865.

[256]

APPENDIX

ARTICLE XIV.7

SECTION 1. All persons born or naturalized in the
United States, and subject to the jurisdiction thereof,
are citizens of the United States and of the State
wherein they reside. No State shall make or enforce
any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without
due process of law ; nor deny to any person within its
jurisdiction the equal protection of the laws.

SECTION 2. Representatives shall be apportioned
among the several States according to their respective
numbers, counting the whole number of persons in each
State, excluding Indians not taxed. But when the right
to vote at any election for the choice of electors for
President and Vice-President of the United States,
Representatives in Congress, the Executive and Judicial
officers of a State, or the members of the Legislature
thereof, is denied to any of the male inhabitants of such
State, being twenty-one years of age, and citizens of
the United States, or in any way abridged, except for
participation in rebellion, or other crime, the basis of
representation therein shall be reduced in the proportion
which the number of such male citizens shall bear to the
whole number of male citizens twenty-one years of age
in such State.

SECTION 3. No person shall be a Senator or Repre-
sentative in Congress, or elector of President and Vice
President, or hold any office, civil or military, under the
United States, or under any State, who, having pre-
T Proclaimed to be in force July $8, 1868.

[2571

THE FRAMING OF THE CONSTITUTION

viously taken an oath, as a member of Congress, or as
an officer of the United States, or as a member of any
State legislature, or as an executive or judicial officer
of any State, to support the Constitution of the United
States, shall have engaged in insurrection or rebellion
against the same, or given aid or comfort to the enemies
thereof. But Congress may by a vote of two-thirds of
each House, remove such disability.

SECTION 4. The validity of the public debt of the
United States, authorized by law, including debts
incurred for payment of pensions and bounties for ser-
vices in suppressing insurrection or rebellion, shall not
be questioned. But neither the United States nor any
State shall assume or pay any debt or obligation in-
curred in aid of insurrection or rebellion against the
United States, or any claim for the loss or emancipation
of any slave ; but all such debts, obligations and claims
shall be held illegal and void.

SECTION* 5. The Congress shall have power to
enforce, by appropriate legislation, the provisions of
this article.

ARTICLE XV.8

SECTION* 1. The right of citizens of the United
States to vote shall not be denied or abridged by the
United States or by any State on account of race, color,
or previous condition of servitude. —

SECTION 2. The Congress shall have power to
enforce this article by appropriate legislation. —

s Proclaimed to be in force March 80, 1870.
[258]

APPENDIX

ARTICLE XVI,9

The Congress shall have power to lay and collect
taxes on incomes, from whatever source derived, without
apportionment among the several States, and without
regard to any census or enumeration.

ARTICLE XVII.10

The Senate of the United States shall be composed
of two Senators from each State, elected by the people
thereof, for six years; and each Senator shall have
one vote. The electors in each State shall have the
qualifications requisite for electors of the most numer-
ous branch of the State legislatures.

When vacancies happen in the representation of any
State in the Senate, the executive authority of such
State shall issue writs of election to fill such vacancies :
Provided., That the legislatures of any State may
empower the executive thereof to make temporary
appointment until the people fill the vacancies by
election as the legislature may direct.

This amendment shall not be so construed as to
affect the election or term of any Senator chosen before
it becomes valid as part of the Constitution.

9 Proclaimed to be in force, February £5, 1933.

10 Proclaimed to be in force, May 31, 1913.

[259]

INDEX

Accounts of public receipts and expenditures ordered 188

Acts of Congress, see Congress, and Supreme law.

Adams, John 39

Adams, John Quincy 83, 201

Address to accompany Constitution 181, 183

Admission of new states, 49, 70, 80, 109, 110, 127, 132, 143,

144, 183, 205.

Agreements between states, see States, restrictions upon.
Alliances between states, see States, restrictions upon.

Ambassadors 131, 155, 161, 165

Amendments to Articles of Confederation, see Articles of

Confederation.

Amendments to Constitution, 51, 70, 80, 127, 158, 179, 180, 181,
189, 190, 191; text of subsequent, see appendix, 253-259.
American People, see People of the United States.
Annapolis Trade Convention, 1786. .. .8, 9, 11, 12, 14, 18, 25, 29, 42
Appointment, power of, see Executive, and President,

Army 49, 147, 161

Articles of association for encouraging economy 186

Articles of Confederation, framing and adoption of, 2, 3, 25,
82; government under, 1, 3, 4, 7, 8, 9, 10, 24, 42-52, 153,
204 ; amendments to, 4, 5, 7, 11, 51 ; revision of, the purpose
of federal convention, 14, 28, 42ff, 69, 72, 73, 128, 191, 201
(see also under the names of individual states "appoint-
ment of delegates") ; use of, in work of federal convention,
10, 11, 77, 85, 107, 127, 128, 129, 139-140, 146, 153-154,
157-158, 190, 208-210; text of, see appendix, 211-224. See
also Congress of the Confederation, Defects of the Confed-
eration, and States.

Assumption of state debts 141, 176

Attainder, bills of 147, 154

Baldwin, Abraham, of Georgia, delegate to federal convention,
S6; changes vote on equality in senate, 96-97; member of
compromise committee, 98; quoted, 162, 181.

Bancroft, George, cited 106,145

Bank, establishment of 46,189,202,204,

[£61]

INDEX

Bankruptcy 48, 14J

Bassett, Richard, of Delaware, delegate to federal convention.. 26

Bedford, Gunning, of Delaware, delegate to federal conven-
tion, 25; opposed a strong national government, 81;
favored equal vote in senate, 96; member of compromise
committee, 98; favored compromise on representation, 99.

BiH of rights 185

Bills of credit 147, 153, 154

Blacks, see Slavery.

Blair, John, of Virginia, delegate to federal convention, 16;
voted against overruling veto by two-thirds vote, 184.

Blount, "William, of North Carolina, delegate to federal con-
vention 24

Brearley, David, of New Jersey, delegate to federal conven-
tion, 18, 19; opposed to proportional representation, 75;
opposed to a strong national government, 81; made sug-
gestion regarding amendments to Constitution, 190,

British, see Great Britain.

Broom, Jacob, of Delaware, delegate to federal convention 26

Butler, Pierce, of South Carolina, delegate to federal conven-
tion, 31; opposed to a strong national government, 81;
favored restrictions on foreigners, 137,

Cabal 170

Cabinet, see Executive departments.

Canada, acquisition of, referred to 144

Canals, power to construct 189

Capitation tax 146, 188

Carroll, Charles, of Carrollton of Maryland, declined appoint-
ment to federal convention..... 35

Carroll, Daniel, of Maryland, delegate to federal convention,

36; supported change in ratio of representation, 198.
Caswell, Richard, of North Carolina, declined appointment to

federal convention 23

Caucus 62, 63, 152, 153

Census 102-104

Chesapeake Bay 8, 36

Citizenship, requirement of 123, 130, 137, 165

Clark, Abraham, of New Jersey, failed to attend federal con-
vention 19

[262]

INDEX

Clymer, George, of Pennsylvania, delegate to federal convention, 20

Coercion 51, 70, 77, 85, 209

Coles, Edward 60

Columbia College 84

Commander-in-chief of Army and Navy 161

Commerce, under the Confederation, 5, 7, 12; power to regu-
late, 85, 140, 147, 152, 208; see also Trade.

Commercial interests 109, 148, 210

Committee of Detail, 122, 128, 124-133; report of, 126ff, 143,
155, 157, 163, 177; report of considered, 184-179; impor-
tance of work of, 124, 132, 201.

Committee of the Whole House 71ff, 81, 82, 84, 86ff, 01, 123

Committee of Style and Arrangement, 179, 181, 182, 186, 187,
190, 201, 209.

Committee on assumption of state debts 141, 142

Committee on encouraging economy 180

Committee on navigation acts and the slave trade 149

Committee on numbers in first house of representatives. . .100, 101

Committee on rules 56, 57

Committee on unfinished parts of Constitution 164, 175

Committee to devise a compromise on representation 97ff

Common defence, see General welfare*

Compromises in federal convention, 100, 135, 183, 201, 203; on
inferior courts, 80; on representation, 91-112, 113, 114, 122,
134, 146; on numbers in first house of representatives, 101;
on slave trade and navigation acts, 149-152; on election of
of president, 166 ff; on assumption of state debts, 141, 177;
see also Large states.

Confederation, see Articles of Confederation, Commerce, Con-
gress of the Confederation, Defects of the Confederation,
and "Federal"

Congress of the Confederation, 2, 3, 4, 5, 8, 10, 11, 24, 54, 82;
resolution of, authorizing federal convention, 11, 28, 29,
31; see also Defects of the Confederation.
Congress of the United States, composition and organization
of, 50, 69, 74ff, 92, 127, 129, 130, 136, 137, 160-161; mem-
bers of, 50, 75, 76, 77, 91, 92, 130, 135, 136, 137, 187-188,
189; powers of, 50, 69, 70, 77, 80, 85, 127, 128, 129, 130,
139ff, 145, 147, 153, 154, 158, 161, 176, 186, 187, 189, 203
(see also under headings for separate powers) ; see also

[2631

INDEX

House of Representatives, Proportional representation,
Senate, and Supreme law.

Connecticut, charter and constitution of, 13; appointment of
delegates from, to federal convention, 33, 35 (see a)so
under names of delegates); in the opposition in federal
convention, 82, 85, 153; voted against a national govern-
ment, 73; voted against proportional representation, 75,
95; favored equal vote in senate, 95, 96; voted for census
of three-fifths of slaves, 103; favored compromise on
representation, 104, 106; voted in favor of proposal for
payment of debts, 177.

Constitution of the United States, ratification of, 10, 11, 14,
28, 51, 70, 71, 80, 81, 121, 127, 157, 158, 159, 180, 190;
agreed to in federal convention, 191; engrossed, 191, 192;
signed, 194; description of completed, 191, 200ff, 209, 210;
adoption of, 142, 207; success of, 208; text of, see appen-
dix, 233-251; see also Address to accompany Constitu-
tion, Amendments to Constitution, Articles of Confedera-
tion, Compromises, Defects of the Confederation, Federal
Convention, States, and Supreme law.

Contracts, obligation of 154, 188

Convention, see Annapolis, and Federal Convention.

Copyright 48, 179

Council of revision, 50, 70, 79, 157, 202; see also Executive
council, and Veto.

Courts, see Judiciary.

Credentials, see Federal convention, and separate states.

Credit, see Bills of credit.

Criminal trials, see Judiciary.

Criminals, extradition of 157

Currency, see Money.

Cutler, Manasseh, cited 54

Dana, Francis, of Massachusetts, failed to attend federal
convention 31

Davie, William R.s of North Carolina, delegate to federal
convention, 23; member of compromise committee, 98.

Dayton, Jonathan, of New Jersey, delegate to federal con-
vention, 19; favored equal vote in senate, 96.

Debts, see Assumption of state debts.

INDEX

Declaration of Independence, 1, 2; signers of, 17, 18, 20, 01,
25, 32, 34.

Declaration of rights, see Bill of rights.

Defects of the Confederation, 4, 5, 7, 8, 9, 10, 12, 28, 42-52,
68-69, 72, 202ff; object of federal convention to remedy,
9, 10, 23, 28, 42-52, 69, 72, 90, 127-128, 191, 201ff; see also
Federal Convention.

Delaware, appointment of delegates from, to federal con-
vention, 11, 24, 56, 75 (see also under names of delegates) ;
voted in favor of national government, 73; voted against
three-fifths rule, 75 ; voted for New Jersey plan, 89 ; voted
against proportional representation in lower house, 95;
voted for counting slaves equally with whites, 102; voted
against census of free inhabitants, 103; voted for com-
promise on representation, 104, 105; voted against com-
promise on slave trade, 150; voted against substituting
house of representatives for senate in election of president,
169; in the opposition in federal convention, 73, 82, 85,
153; referred to, 8, 13, 25, 100, 117.

Delegates, see Federal Convention, and under names of indi-
vidual states.

Departments, see Executive departments.

Detail, committee of, see Committee of Detail.

Dickinson, John, of Delaware, delegate to federal convention,
25; opposed a strong national government, 81; favored
popular election of executive, 116; favored restrictions on
money-bills, 139; favored council for president, 171-172;
part taken by, in work of federal convention, 200; quoted,
204.

Direct taxation, see Taxation.

Dred Scott case 144

Duties on imports, 4, 5, 45, 85, 150, 152, 153, 154; see also
Revenue, Taxation.

Duvall, Gabriel, of Maryland, declined appointment to federal
convention „ 35

Education 48, 20$

Electors, see Executive, and President.

Elliot, Jonathans cited 47

Ellsworth, Oliver, of Connecticut, delegate to federal conven-

[265]

INDEX

tion, 34, 35; opposed a strong national government, 81;
favored New Jersey plan, 86; member of compromise
committee, 98; makes motion for equal vote in senate, 106;
favored ratification of Constitution by state legislature,
121; member of committee of detail, 122, 124; opposed
restrictions on money-bills, 139; part taken by, in the work
of federal convention, 124, 132, 200; quoted, 93, 132, 149.

Embargo of 1807 206

England, see Great Britain.
Equity, see Judiciary.

Ex post facto laws 147, 154

Execution of the laws of the union, 140, 209, see also Executive,

and President.

Executive, character of, 3, 73, 78, 79, 85, 117, 127, 129, 161, 169-
170, 203; to be single or plural, 50, 77, 85, 160; election of,
70, 77, 78, 85, 88, 115, 117; term of office of, 77, 78, 88, 115,
117; powers and duties of, 79, 85, 86, 88, 119, 157, 160
(see also Veto) ; see also Impeachment, and President.
Executive council, 50, 166, 171, 172; see also Council of revision.

Executive departments 166, 172

Expenditures, accounts of, ordered 188

Experience, importance of, in work of federal convention. . . .

52, 128, 129, 203, 204, 205

Exports, prohibition of tax on 132, 148, 151, 186

Extradition of criminals 157

"Federal," meaning of term in federal convention 69 note 1, 84

Federal Convention, calling of, 9, 10, 12, 28, 68; organization
and sessions of, 54-61, 64, 98, 113, 122, 134, 179, 191, 192,
194, 198 (see also Committee of the Whole House) ; spirit
and purpose of, 62, 63, 81, 84, 94, 114, 118, 134, 185, 187
(see also Compromises, and Defects of the Confedera-
tion) ; delegates to, 10, 14-40, 43, 56, 57, 58, 61, 63, 122
(see also under names of individuals) ; powers of, 73, 74,
86, 87, 113; reports and proceedings of, 58-60, 65, 110, 194;
a second, proposed, 180-181, 191, 192.

Federal ratio, see Three-fifths rule.

"Federalist," the, quoted 808

Felony, see Judiciary.

Few, William, of Georgia, delegate to federal convention..*... 96

[266]

INDEX

Finance, see Duties, Money, Money-bills, Revenue, Taxation.

First branch, see Congress of the United States, and House of
Representatives.

Fitzsimons, Thomas, of Pennsylvania, delegate to federal con-
vention 21

Force, see Coercion.

Ford, P. L., Pamphlets on Constitution of United States 40

Foreign relations, 47, 50; see also Treaties.

Foreigners 39, 50, 137

France, representative of, cited 9, 35, 38

Franklin, Benjamin, of Pennsylvania, delegate to federal
convention, 22; and the presidency of the convention, 55;
supported a strong national government, 81 ; made motion
for prayers in convention, 94; proposed compromise, 96;
member of committee on representation, 98; favored
impeachment, 118; favored restrictions on money-bills,
139; supported council for president, 171-172; wanted
power granted to construct canals, 189; presented form of
approval for Constitution, 192; part taken by, in work of
federal convention, 199; quoted, 92, 194.

Franklin, Temple, candidate for secretary of convention 56

Freedom of the press 189

Frontier, see Admission of new states, and the West.

Fugitive slaves 152

GaUatin, Albert 182

General welfare 176-178,182

Georgia, appointment of delegates from, to federal convention,
11, 26 (see also under names of delegates); one of the
large states, 74, 97; divided on equal vote in senate, 96;
demanded blacks be counted equally with whites, 102;
voted against census of free inhabitants, 103; voted for
census of three-fifths of slaves, 103; voted against com-
promise on representation, 105; favored slave trade, 149,
150; voted for power to construct canals, 189; referred to,
13, 117, 153.

Gerry, Elbridge, of Massachusetts, delegate to federal con-
vention, 32; favored election of members of congress by
state legislatures, 75; opposed popular ratification of
Constitution, 80, 121, 180; supported a strong national

[267]

INDEX

government, 81; member of committee on representation,
98; opposed popular election of executive, 116; favored
impeachment, 118; favored restrictions on money-bills,
139, 172; favored assumption of state debts, 141; attended
extra-conventional meetings, 153; opposed easy amend-
ment of constitution, 180, 190; favored overruling of veto
by two-thirds vote, 183-184; moved for a committee to
prepare bill of rights, 185; opposed constitution, 142, 192,
194; part taken by, in work of federal convention, 200;
quoted, 117, 157.

Oilman, Nicholas, of New Hampshire, delegate to federal con-
vention ,,,,, 3$

Gorham, Nathaniel, of Massachusetts, delegate to federal con-
vention, 32; chairman of committee of the whole, 72;
opposed choosing of judiciary by senate, 119 ; favored popu-
lar ratification of Constitution, 121 ; a member of commit-
tee of detail, 122, 124; desired Prince Henry of Prussia
to become monarch of the United States, 174; favored
election of treasurer by congress, 188; favored change in
ratio of representation, 193; part taken by, in work of
federal convention, 124, 199; quoted, 100, 109, 110, 136;
referred to, 63.

Great Britain 1, 6, 43, 87, 139, 147, 14$

Grigsby, H. B., History of Virginia Convention of 1788 15, 4$

Habeas corpus 150,

Hamilton, Alexander, of New York, delegate to federal con-
vention, 29, 94; in Annapolis convention, 9; anecdote of,
22; favored national government, 73, 87; presented his own
plan of government, 87; disapproved New Jersey plan, 87;
favored British government, 87; charged with favoring
monarchy, 88; opposed motion for prayers, 95; member of
committee of style, 179; favored approval of Constitu-
tion by congress, 180; opposed overruling of veto by two-
thirds vote, 183-184; established a national bank, 204; part
taken by, in work of federal convention, 87, 94, 197, 206;
quoted, 61, 95; referred to, 52, 63.

Harrison, Robert Hanson, of Maryland, declined appointment
to federal convention 3$

Hazard, W. P., Annals of Philadelphia 173-174 note

[268]

INDEX

Henry, Patrick, of Virginia, declined appointment to federal
convention, 15; referred to, 17.

Henry, Prince of Prussia, suggested as monarch of the United
States 174

History, use of, in federal convention 52, 203

House of Representatives, election of members of, 69, 75, 76,
92; term and payment of members of, 76, 91, 131, 138;
qualifications for members of, 123, 130, 135, 137; number
of members in first, 100, 101, 105; substituted for senate
in eventual election of president, 168; see also Congress of
the United States, Impeachment, Money-bills, and Pro-
portional representation.

Houston, William C., of New Jersey, delegate to federal con-
vention 18

Houstoun, "William, of Georgia, delegate to federal convention. .27

Impeachment 70, 79, 86, 118, 130, 131, 160, 161, 166, 170, 203

Import duties, see Duties on imports.

Independence Hall 54

Independent Gazetteer, quoted 173 note

Indian Queen, a tavern 62

Indians, policy in dealing with 48

Ingersoll, Jared, of Pennsylvania, delegate to federal con-
vention 21

Insurrections 14-0

Internal improvements 49, 189, 202, 204

International Law, see Law of nations.

Inventions 48

Jackson, William, elected secretary of federal convention 56

Jay, John, quoted 43

Jefferson, Thomas 39, 42, 43, 46, 74

Jenifer, Daniel of St. Thomas, of Maryland, delegate to federal

convention 36, 96

Johnson, William Samuel, of Connecticut, delegate to federal
convention, S3; introduced subject of compromise on
representation, 106; member of committee of style, 179;
seconded motion for committee on economy, 186, 187; part
taken by, in work of federal convention, 200; quoted, 89,
134.

[269]

INDEX

Jones, Willie, of North Carolina, declined appointment to
federal convention 23

Judiciary, appointment and term of, 70, 79, 119, 155, 165;
organization of, 3, 50, 70, 73, 79, 80, 86, 127, 154, 155;
jurisdiction of, 4, 47, 50, 70, 79, 86, 119, 120, 130, 131, 154,
155, 156, 185, 202, 209; right of, in cases of unconstitu-
tional laws, 120, 156; see also Council of revision, and
Veto.

Jury trials 131, 156, 185

King, Rufus, of Massachusetts, delegate to federal convention,
32; favored popular ratification of constitution, 80, 121;
supported a strong national government, 81; opposed
equal vote in senate, 96 ; favored popular election of execu-
tive, 116; opposed impeachment, 118; proposed clause on
obligation of contracts, 154, 188; member of committee of
style, 179, 188; favored appointment of treasurer by con-
gress, 188; supported change in ratio of representation,
193; quoted, 108, 157, 167, 172; part taken by, in work of
federal convention, 199.

Krauel, Richard, cited 17*

Langdon, John, of New Hampshire, delegate to federal con-
vention 3T

Lansing, John, of New York, delegate to federal convention,
29; voted with Yates against Hamilton, 73, 197; opposed
strong national government, 81; favored New Jersey plan,
86; left convention, 105.

Large states w. small states in federal convention, 57, 82, 91,
101, 111, 113, 116, 118, 166, 168; see also Compromises.

Laurens, Henry, of South Carolina, failed to attend federal
convention 31

Laurens, John 56

Law of nations 46,47, 140

Lee, Richard Henry, declined to serve in federal convention. . . .16

Lee, Thomas Sim, of Maryland, declined appointment to
federal convention 35

Legal tender 153, 15*

Legislature, see Congress.

[270J

INDEX

Letter to Congress, see Address to accompany Constitution.

Livingston, Henry "W., letter of Morris to 144

Livingston, William, governor of New Jersey, delegate to

federal convention 19

Louisiana purchase 144

Lower house, see House of Representatives.

McClurg, James, of Virginia, delegate to federal convention. . . .16
McHenry, James, of Maryland, delegate to federal convention,
35, 152; notes of proceedings kept by, 152, 174, 193;
favored power in congress to erect piers, ITS; voted
against overruling veto by two-thirds vote, 184.
Madison, James, of Virginia, delegate to federal convention,
17, 63; delegate to Annapolis convention, 8; favored a
national bank, 46; favored popular election of members
of congress, 76; opposed election of senate by state legis-
latures, 76; favored popular ratification of constitution,
80, 121; opposed New Jersey plan, 86, 90; opposed equal
vote in senate, 96; opposed compromise on representa-
tion, 97, 99; favored popular election of executive, 116;
favored impeachment, 118; opposed choosing of judiciary
by senate, 119; objected to ratio of representation, 136;
approved May as time of meeting of congress, 136; sug-
gested another standard of value than money, 138;
opposed restrictions on money-bills, 139; opposed limita-
tion on admission of new states, 143 ; suggested permitting
of export taxes by two-thirds vote, 148; favored ratifica-
tion of constitution by seven states, 158; supported a
council for president, 171-172; member of committee of
style, 179; opposed overruling of veto by two-thirds vote,
183-184; favored power to incorporate, 189; notes of
debates kept by, 59, 60, 64, 66; quoted, 7, 17, 53, 61, 93,
98, 110, 111, 113, 114, 117, 191, 139, 145, 157, 167, 172, 177,
181, 191, 199, 208; part taken by, in work of federal con-
vention, 68, 81, 196, 198, 200, 206.

Manufactures, committee appointed to report articles of asso-
ciation for encouraging 186

Maritime cases 86, 155, 185

Marque and reprisal • 153

Marshall, John 43

[271]

INDEX

Martin, Alexander, of North Carolina, delegate to federal
convention

Martin, Luther, of Maryland, delegate to federal convention,
36 ; opposed a strong national government, 81 ; in the oppo-
sition in federal convention, 85, 153, 200; speech by, 93;
cast Maryland's vote in favor of equality in senate, 96;
member of compromise committee, 98; proposed supreme
law clause, 120, 209; part taken by, in work of federal
convention, 200; quoted, 66, 81, 96-97, 153, 157, 174.

Maryland, appointment of delegates from, to federal conven-
tion, 35 (see also under names of delegates) ; trade agree-
ment of, with Virginia, 8, 36; in the opposition in federal
convention, 73, 82; divided on proportional representation,
75, 95; voted against proportional representation in upper
house, 75; divided on New Jersey plan, 89; voted against
census of free inhabitants, 103; voted for compromise on
representation, 105; against voting per capita in senate,
122; obtained uniformity of commerce regulations, 152;
voted for overruling president's veto by two-thirds vote,
184; referred to, 13, 137.

Mason, George, of Virginia, delegate to federal convention,
17, 63; favored popular election of members of congress,
76; supported a strong national government, 81; member
of compromise committee on representation, 98; opposed
popular election of executive, 116; favored impeachment,
118; favored popular ratification of constitution, 121;
favored restrictions on money-bills, 139, 172; opposed limi-
tation on admission of new states, 143 ; ob j ected to recog-
nition of slavery, 149; attended extra-conventional meet-
ings, 153; favored council for president, 171-172; favored
overruling veto by two-thirds vote, 184; consented to no
action on jury in civil cases, 185; favored bill of rights,
185; proposed modification on prohibition of exports, 186;
favored a second convention, 191-192; opposed Constitu-
tion, 191-192, 194; quoted, 56, 74, 116, 157, 167, 168, 186;
part taken by, in work of federal convention, 199.

Massachusetts, appointment of delegates from, to federal con-
vention, 31; favored a strong national government, 73, 82;
divided on compromise on representation, 105; voted
against impeachment, 118; voted for negative on state

[372]

INDEX

laws, 120; constitution of, furnished model for veto, 145;
voted for prohibition of export taxes, 148; referred to,
13, 101, 108, 117.

Mercer, John Francis, of Maryland, delegate to federal con-
vention, 36; list made by, of those favoring monarchy, 174.

Middle states 147, 148

Mifflin, Thomas, of Pennsylvania, delegate to federal convention, 20

Militia 49, 140, 142, 209

Monarchy 77, 88, 162, 173, 174

Money 45-46, 108, 138, 147, 153, 154

Money-bills 99, 106, 138, 172

Montesquieu 49

Morris, Gouverneur, of Pennsylvania, delegate to federal con-
vention, 21; anecdote of, 22; opposed equal voting in
federal convention, 57; supported a strong national gov-
ernment, 81; opposed compromise on representation, 99;
proposed clause on taxation and representation, 103, 104;
member of committees, 109, 177, 179, 181 ; favored popular
election of executive, 116; opposed impeachment, 118;
favored impeachment, 118; favored popular ratification of
constitution, 121; opposed restrictions on money-bills,
139, 172-173; favored limitation on admission of new
states, 143, 205; favored prohibition of paper money, 147;
favored assumption of debts, 177-178; opposed overruling
of veto by two-thirds vote, 183-184; proposed provision in
Constitution limiting amendments, 190; devised form for
approval of Constitution, 192; part taken by, in work of
federal convention, 109, 177-178, 181, 183, 198, 199, 201;
quoted, 62, 66, 94, 144, 150, 157, 167, 172, 178, 205.
Morris, Robert, of Pennsylvania, delegate to federal conven-
tion 20, 37, 55, 206

"National" 73, 91

National peace and harmony , 119, 155

Naturalization 48, 140

Navigation acts 6, 132, 148, 149-151, 188

Navy 49, 141

Negative on state laws 51, 70, 77, 88, 120, 202

Neilson, John, of New Jersey, declined appointment to federal
convention • 19

[278]

INDEX

Nelson, Thomas, of Virginia, declined appointment to federal

convention 16

New England 147, 148, 151

New Hampshire, appointment of delegates from, to federal

convention, 11, 37, 96, 123; referred to, 13, 101, 117.
New Jersey, appointment of delegates from, to federal con-
vention, 11, 18 (see also under names of delegates) ; in
the opposition in federal convention, 73, 80, 113, 153; voted
against proportional representation, 75, 95; voted against
three-fifths rule, 75; voted for New Jersey plan, 89; pro-
posed that New Hampshire be urged to attend, 96; voted
for compromise on representation, 104; voted against com-
promise on slave trade, 150; referred to, 7, 13, 100.
New Jersey Plan, 84-90, 107, 113, 123, 125, 128, 141; text of,

see appendix, 229-232.

New York, presented resolution in congress authorizing federal
convention, 28; appointment of delegates from, to federal
convention, 29 (see also under names of delegates); in
the opposition in federal convention, 73, 82, 85; vote of,
divided on a national government, 73; voted for New
Jersey plan, 89; voted against proportional representation,
95; referred to, 5, 7, 100, 105, 189; constitution of, 13, 29,
129, 161.

Newspapers, quoted 23, 114, 173, 174, 195

Nobility 146, 153

North Carolina, appointment of delegates from, to federal
convention, 11, 22 (see also under names of delegates);
voted in favor of national government, 73; voted for
census of three-fifths of slaves, 103; voted for compromise
on representation, 105; voted for negative on state laws,
120; favored slave trade, 149; proposal for an additional
member from, in first congress, 189; referred to, 7, 13, 109,
150.

North vs. South 108, 110, 111, 149, 150

NuUificatioii 206

Oath, to support constitution 70, 127

Office-holders, limitations on 50, 135, 136, 146

Opposition, the, in federal convention

73, 82, 84, 92, 134, 187, 188, 200

[274]

INDEX

Ordinance of 1787 154

Osnaburgh, Bishop of 173

Otto, French charge d'affaires, see France.

Oxford University 31,33

Patents * 179

Paterson, William, of New Jersey, delegate to federal conven-
tion, 18; a leader of the opposition, 75, 81; presented New
Jersey plan, 84; favored New Jersey plan, 86; member of
committee on representation, 98; opposed compromise
report on representation, 100; on the powers of federal
convention, 113; favored popular election of executive,
116; favored ratification of Constitution by state legis-
latures, 121 ; part taken by, in work of federal convention,
£00.

Paterson Resolutions, see New Jersey Plan.
Pendleton, Nathaniel, of Georgia, declined appointment to fed-
eral convention 26

Pennsylvania, appointment of delegates from, to federal con-
vention, 11, 20, 24; opposed voting by states in federal
convention, 57; favored a strong national government,
73, 82; voted against compromise on representation, 105;
favored proportional representation, 111; voted for popu-
lar election of executive, 116; voted against compromise
on slave trade, 150; voted for power to construct canals,
189; referred to, 8, IS, 25, 100, 109, 117.

Pennsylvania Packet and Daily Advertiser, quoted 195

Penn, William, quoted * 209

People of tiie United States 2, 52, 74, 190, 191, 198, 210

Personal influence in federal convention 63ff, 198

Philadelphia, 7, 10, 11, 12, 23, 54, 189; College of, referred to, 24
Pickering, John, of New Hampshire, failed to attend federal

convention 38

Pickering, Timothy, letter of Morris to 181

Pierce, William, of Georgia, delegate to federal convention,
27; character sketches of delegates by, quoted, 16-38
passim.

Pinckney, Charles, of South Carolina, delegate to federal con-
vention, 30, 63; presented his plan of government, 71;
favored election of members of congress by state legis-

[275]

INDEX

latures, 75, 92? favored ratification of Constitution by less
than unanimous vote of states, 81; supported a strong
national government, 81; criticised New Jersey's motives,
113; opposed popular election of executive, 116; opposed
impeachment, 118; opposed restrictions on money-bills,
139; favored overruling of veto by two-thirds vote,
183-184; part taken by, in work of federal convention, 199;
see also Pinckney Plan.

Pinckney, Charles Cotesworth, of South Carolina, delegate to
federal convention, 31; favored election of members of
congress by state legislatures, 75; supported a strong
national government, 81; proposed compromise committee
on representation, 97; explained slave trade compromise,
151;. part taken by, in work of federal convention, 199.

Pinckney Plan 71, 72, 83, 123, 126, 108, 129

Piracy, trial of 4, 47

Popular elections, see Congress, Constitution, Executive,

House of Representatives, President, and Senate.
Population, see Census, Proportional representation, and

Wealth.

Powers of congress, see Congress of the United States, powers
of.

Preamble to Constitution 190, 191

President, office of, 129, 131, 161, 163, 165; election and term of,
160-172; powers and duties of, 129, 160-163,. 165, 166, 171,
172; see also Executive, Impeachment, and Monarchy.

Princeton College 18

Property qualifications 123, 130, 135

Proportional representation

50, 69, 74, 75, 82, 84, 92, 94-112, 136, 193

Randolph, Edmund, of Virginia, delegate to federal conven-
tion, 16; delegate to Annapolis convention, 8; presented
Virginia Plan, 68, 71, 202; opposed single executive, 77;
supported a strong national government, 81 ; opposed New
Jersey Plan, 86; proposed a census, 101-102; opposed
popular election of executive, 116; favored impeachment,
118; favored popular ratification of Constitution, 121;
member of committee of detail, 122, 124, 125, 132; favored
restrictions on money-bills, 139; objected to Constitution,

[376]

INDEX

180, 191, 194(5 voted in favor of overruling veto by two-
thirds vote, 184; favored a second convention, 180-181,
191 ; part taken by, in work of federal convention, 124, 199.
Randolph Resolutions, see Virginia Plan.
Read, George, of Delaware, delegate to federal convention, 25, 147

Receipts and expenditures 188

Representation, see Congress, House of Representatives, Pro-
portional representation.
Republican party, see Democratic-Republican party.

Requisitions 4, 5, 45, 85

Restrictions, see Congress, and States.

Revenue, 4, 5, 45, 70, 85, 86, 152; see also Duties, Money,

Money-bills, and Taxation.
Revolution, the....l, 15, 19, 20, 23, 27, 29, 31, 34, 35, 38, 39, 10&

Rhode Island 5, 11, 13, 117, 189

Rutledge, John, of South Carolina, delegate to federal conven-
tion, 30, 63; conducted Washington to the chair, 55; moved
to take up proportional representation, 93; member of
compromise committee on representation, 98; opposed
popular election of executive, 116; as a member of com-
mittee of detail, 122, 124, 125, 126, 132; opposed restric-
tions on money-bills, 139; part taken by, in work of
federal convention, 124, 199.

Seat of government 48, 179, 189

Secession , .206

Second branch, see Senate.

Senate, election and term of members of, 69, 76, 88, 91, 111,
112, 187, 188; voting in, 121, 122; qualifications for mem-
bers of, 123, 130, 135, 137; powers and privileges of, 119,
131, 165, 167, 168, 169, 171, 172; presiding officer of, 129,
161, 165, 169; see also Congress, and Proportional repre-
sentation.

Separation of powers 49, 69

Shays's rebellion 49

Sherman, Roger, of Connecticut, delegate to federal conven-
tion, 34, 35; favored election of members of congress by
state legislatures, 75; opposed popular ratification of
constitution, 80; opposed a strong national government,
81; proposal by, in compromise committee, 98; opposed

[277]

INDEX

popular election of executive, 116; opposed limitation on
admission of new states, 143; explained compromise in
election of president, 167; favored provision for payment
of debts, 177; member of committee on unfinished parts
of constitution, 177; prevented modification of general
welfare clause, 183; favored overruling of veto by two-
thirds vote, 183-184; opposed bill of rights, 185; made sug-
gestion regarding amendments, 190 ; part taken by, in work
of federal convention, 200.

Slave trade 139, 148, 149-151, 153, 180

Slavery, 102, 103, 110, 148, 152; see also Three-fifths rule.
Small states, in the federal convention, 84, 92, 97, 98, 107, 111,
113, 114, 116, 119, 167, 172; see also Compromises, and
Large states.

South, the 108,110-111,148

South Carolina, appointment of delegates from, to federal
convention, 30, 153 (see also under names of delegates) ;
voted in favor of a national government, 73; demanded
blacks be counted equally with whites, 102, 103; voted
against compromise on representation, 105; voted against
impeachment, 118; favored slave trade, 149, 150, 151;
referred to, 7, 13, 109.
Spaight, Richard D., of North Carolina, delegate to federal

convention 23

Sparks, Jared, letter of Madison to 181

Specie 153, 154

States, under the Articles of Confederation, 1, 3, 7, 8, 24, 46, 47,
48, 82, 145, 208; constitutions and governments of, 1, 13,
128, 129, 130, 139, 186, 203, 204; representation of, in
federal convention, 54, 57 ; relation of, to the new constitu-
tion, 70, 71, 120, 158, 180; guarantees to, 49, 70, 80, 127,
132; method of settling disputes between, 128, 131, 155,
156; restrictions upon, 47, 48, 77, 85, 88, 120, 127, 128, 153,
154, 188; rights and privileges of, 69, 79-80, 111, 127, 128,
142, 143, 157, 186, 190, 206; courts of, 80, 86, 155; see also
under names of separate states, Admission, Assumption,
Large states, Militia, Negative on state laws, Small states.

Stiles, Ezra 162, 181

Stone, Thomas, of Maryland, declined appointment to federal
convention 35

[£78]

INDEX

Strong, Caleb, of Massachusetts, delegate to federal conven-
tion 33, 63

Suffrage, see Congress, House of Representatives, and Senate.
Supreme court, see Judiciary.

Supreme law clause 85, 120, 209

Tariff of 1816 906

Taxation, under Articles of Confederation, 7, 12; under Con-
stitution, 45, 85, 103-105, 140, 146, 150, 177, 188, 208; see
also Capitation tax, Duties on imports, Exports, and
Requisitions.

Territory, control of 145

Three-fifths rule 5, 75, 85, 99, 102-104, 105, 107

Trade, 5, 6, 7, 18, 45, 85, 86, 210 ; see also Annapolis, Commerce,
Commercial Interests, and Congress, powers of.

Treason 48, 140, 146

Treasurer of the United States 188

Treaties, breach of, 46, 77; how to be made, 131, 153, 165, 171;
enforcement of, 85, 86, 140, 153, 155 (see also Supreme
law).
Treaty of Paris, 1783 . , 46, 82

Uniformity 7,45,46,48, 140, 141, 152

University, power to establish 189

University of Georgia 27

Upper house, see Senate.

Veto, 50, 70, 79, 85, 88, 119-120, 145, 156-157, 160, 161, 183-184, 202

Vice-President 165, 169, 203

Virginia, appointment of delegates from, to federal convention,
10, 14-17, 18, 20, 24, 35, 39 (see also under names of dele-
gates) ; proposed Annapolis trade convention, 8 ; favored a
national government, 73, 82; favored equal voting in
federal convention, 57; voted for census of three-fifths
of slaves, 103; voted against compromise on representa-
tion, 105; opposed election of senators by state legisla-
tures, 111; favored proportional representation, 111; voted
for negative on state laws, 120; voted against compromise
on slave trade, 150; voted against overruling veto by two-
thirds vote, 184; voted for power to construct canals, 189$
referred to, 7, 8, 13, 15, 17, 36, 46, 109, 117, 168, 185.

[279]

INDEX

Virginia Plan, 68-73, 82, 84-86, 88, 89, 91, 107, 113, 115, 122,
202; text of, see appendix, 225-228.

Toting, see Congress, Federal Convention, House of Repre-
sentatives, Proportional representation, and Senate.

Walton, George, of Georgia, declined to attend federal con-
vention 26

War 141, 153

War of 1812 59, 204

Washington, George, of Virginia, delegate to federal conven-
tion, 15; anecdotes of, 64, 65, 66, 74; supported a strong
national government, 81; voted for restrictions on money-
kills, 139; favored ratification of constitution by seven
states, 158; voted against overruling veto by two-thirds
vote, 184; favored change in ratio of representation, 193;
lavored internal improvements, 204; part taken by, in
work of federal convention, 55, 64-66, 132, 163, 198;
ouoted, 21, 43, 163, 194; referred to, 36, 94.

Watson, John JB\, Annals of Philadelphia 55, 173-174 note

Wealth 101, 102

Weather during federal convention 93, 104, 134

Webster, Pelatiah 53

Welfare, see General welfare.

West, Benjamin, of New Hampshire, failed to attend federal

convention 38

West, the, 48-49, 108, 109, 110, 143, 145, 204; see also Admission
of new states.

William and Mary College J7

Williamson, Hugh, of North Carolina, delegate to federal
convention, 24; explained why prayers were not read in
convention, 95; opposed compromise report on representa-
tion, 100; suggested modification in taking of census, 102;
favored restrictions on money-bills, 139; member of com-
mittee on unfinished parts of constitution, 184; obtained
change in provisions concerning veto, 183-185; favored
provision for jury in civil cases, 184-185; quoted, 169.
Wilson, James, of Pennsylvania, delegate to federal convention,
21; favored popular election of members of congress, 76;
favored popular election of executive, 78, 115; favored
popular ratification of Constitution, 80, 121; favored rati-

[ 280 ]

INDEX

fication of Constitution by less than unanimous vote of
states, 81; favored a strong national government, 81;
opposed New Jersey plan, 86; opposed equal vote in
senate, 96; opposed compromise committee on representa-
tion, 97; favored impeachment, 118; opposed choosing of
judiciary by senate, 119; as a member of committee of
detail, 122, 124, 125, 126, 198, 201; opposed restrictions on
foreigners, 137; opposed restrictions on money-bills, 139;
supported council for president, 171-172; proposed amend-
ment of Constitution by two-thirds of states, 180; read
Franklin's speeches, 199; part taken by, in work of federal
convention, 124, 181, 197, 198, 200, 201, 206; quoted, 62, 157,
164.

Wolcott, Erastus, of Connecticut, declined appointment to
federal convention SS

Wythe, George, of Virginia, delegate to federal convention 17

Yale 27

Yates, Robert, of New York, delegate to federal convention,
29; opposed a strong national government, 73, 81; in oppo-
sition to Hamilton, 197; member of compromise committee,
98; left federal convention, 105; quoted, 93, 98.

[281]

THE YALE PAPERBOUNDS

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Griswold

Y-s A TOUCH OF THE POET by Eugene O'Neill

Y-3 THE FOLKLORE OF CAPITALISM by Thurman Arnold

Y-4 THE LOWER DEPTHS AND OTHER PLAYS by Maxim Gorky

Y-5 THE HEAVENLY CITY OF THE EIGHTEENTH-CENTURY PHILOSOPHERS

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Y-6 LORCA by Roy Campbell

Y-7 THE AMERICAN MIND by Henry Steele Commagen

Y-8 GOD AND PHILOSOPHY by Etienne Gilson

Y-g SARTRE by Iris Murdoch

Y~io AN INTRODUCTION TO THE PHILOSOPHY OF LAW by Roscoe Pound

Y-ii THE COURAGE TO BE by Paul Tillich

Y-i2 PSYCHOANALYSIS AND RELIGION by Erich Fromm

Y-i3 BONE THOUGHTS by George Starbuck

Y-i4 PSYCHOLOGY AND RELIGION by C. G. Jung

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Y~i6 LEGENDS OF HAWAII by Padraic Colum

Y-iy AN INTRODUCTION TO LINGUISTIC SCIENCE by E. H. Sturtevant

Y-i8 A COMMON FAITH by John Dewey

Y-ig ETHICS AND LANGUAGE by Charles L. Stevenson

Y-20 BECOMING by Gordon W. Allport

Y-2i THE NATURE OF THE JUDICIAL PROCESS by Benjamin N. Cardozo

Y-22 PASSIVE RESISTANCE IN SOUTH AFRICA by Leo Kuper

Y-23 THE MEANING OF EVOLUTION by George Gaylord Simpson

Y-24 PINCKNEY'S TREATY by Samuel Flagg Bemis

Y-25 TRAGIC THEMES IN WESTERN LITERATURE edited by Cleanth Brooks

Y-26 THREE STUDIES IN MODERN FRENCH LITERATURE by J. M. Cocking,

Enid Starkie, and Martin Jarrett-Kerr

Y-27 WAY TO WISDOM by Karl Jaspers

Y-28 DAILY LIFE IN ANCIENT ROME by Jerdme Carcopino

Y-29 THE CHRISTIAN IDEA OF EDUCATION edited by Edmund Fuller

Y-30 FRIAR FELIX AT LARGE by H. F. M. Prescott

Y-3i THE COURT AND THE CASTLE by Rebecca West

Y-32 SCIENCE AND COMMON SENSE by James B. Conant

Y-33 THE MYTH OF THE STATE by Ernst Cassirer

Y-34 FRUSTRATION AND AGGRESSION by John Dollard et al

Y-35 THE INTEGRATTVE ACTION OF THE NERVOUS SYSTEM by Charles

Sherrington

Y-36 TOWARD A MATURE FAITH by Erwin R. Goodenough

Y-37 NATHANIEL HAWTHORNE by Randall Stewart

Y-38 POEMS by Alan Dugan

Y-39 GOLD AND THE DOLLAR CRISIS by Robert Triffin

Y-40 THE STRATEGY OF ECONOMIC DEVELOPMENT by Albert 0. Hirschman

Y-4i THE LONELY CROWD by David Riesman

Y-42 LIFE OF THE PAST by George Gaylord Simpson

Y-43 A HISTORY OF RUSSIA by George Vernadsky

Y-44 THE COLONIAL BACKGROUND OF THE AMERICAN REVOLUTION by

Charles M. Andrews

Y-45 THE FAMILY OF GOD by W. Lloyd Warner
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Y-47 THE DYNAMICS OF CULTURE CHANGE by Bronislaw Malinowski
¥-48 ELEMENTARY PARTICLES by Enrico Fermi
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Y-50 JONATHAN DICKINSON'S JOURNAL edited by Evangeline Walker An-
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Y-5i MODERN FRENCH THEATRE by Jacques Guicharnaud
Y-52 AN ESSAY ON MAN by Ernst Cassirer
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Farrand

Y-54 JOURNEY TO AMERICA by Alexis de Tocqueville
Y-55 THE HIGHER LEARNING IN AMERICA by Robert M. Hutchins
Y-56 THE VISION OF TRAGEDY by Richard B. Sewall
Y-57 MY EYES HAVE A COLD NOSE by Hector Chevigny
Y-58 CHILD TRAINING AND PERSONALITY by John W. M. Whiting and

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Y-59 RECEPTORS AND SENSORY PERCEPTION by Ragnar Granit
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Y-6s JAY'S TREATY by Samuel Flagg Bemis

Y-6g SHAKESPEARE: A BIOGRAPHICAL HANDBOOK by Gerald Eades Bentley
Y-64 THE POETRY OF MEDITATION by Louis L. Martz
Y-65 SOCIAL LEARNING AND IMITATION by Neal E. Miller and John Dollard
Y-66 LINCOLN AND His PARTY IN THE SECESSION CRISIS by David M. Potter
Y-6y SCIENCE SINCE BABYLON by Derek ]. de Solla Price
Y-68 PLANNING FOR FREEDOM by Eugene V. Rostow
Y-6g BUREAUCRACY by Ludwig von Mises
Y-yo JOSIAH WILLARD GIBBS by Lynde Phelps Wheeler
Y-yi How TO BE FIT by Robert Kiphuth
Y-72 YANKEE CITY by W. Lloyd Warner
Y-73 WHO GOVERNS? by Robert A. Dahl
Y-74 THE SOVEREIGN PREROGATIVE by Eugene V. Rostow
Y-75 THE PSYCHOLOGY OF C. G. JUNG by Jolande Jacobi
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Janisf and Harold H. Kelley
Y-77 IDEOLOGICAL DIFFERENCES AND WORLD ORDER edited by F. S. C.

Northrop

Y-78 THE ECONOMICS OF LABOR by E. H. Phelps Brown
Y-79 FOREIGN TRADE AND THE NATIONAL ECONOMY by Charles P. Kindle-

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Y-8o VOLPONE edited by Alvin B. Kernan
Y-8 1 Two EARLY TUDOR LIVES edited by Richard S. Sylvester and Davis P.

Harding

Y-82 DIMENSIONAL ANALYSIS by P. W. Bridgman
Y-83 ORIENTAL DESPOTISM by Karl A. Wittfogel
Y-84 THE COMPUTER AND THE BRAIN by John von Neumann
Y-&5 MANHATTAN PASTURES by Sandra Hochman
Y-86 CONCEPTS OF CRITICISM by Rent Wellek

Y-8y THE HIDDEN GOD by Cleanth Brooks

Y-88 THE GROWTH OF THE LAW by Benjamin N. Cardozo

Y-8g THE DEVELOPMENT OF CONSTITUTIONAL GUARANTEES OF LIBERTY by

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Y-^o POWER AND SOCIETY by Harold D. Lasswell and Abraham Kaplan
Y-gi JOYCE AND AQUINAS by William T. Noon, SJ.
Y-Q2 HENRY ADAMS: SCIENTIFIC HISTORIAN by William Jordy
Y-gs THE PROSE STYLE OF SAMUEL JOHNSON by William K. Wimsatt, Jr.
Y-94 BEYOND THE WELFARE STATE by Gunnar Myrdal
Y-95 THE POEMS OF EDWARD TAYLOR edited by Donald E. Stanford
Y-g6 ORTEGA Y GASSET by Jose Ferrater Mora
Y-g7 NAPOLEON: FOR AND AGAINST by Pieter Geyl
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Hocking

Y-gg THE VICTORIAN FRAME OF MIND by Walter E. Houghton
Y-ioo POLITICS, PERSONALITY, AND NATION BUILDING by Lucian W. Pye
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Van Riper, Norman H. Martin } Orvis F. Collins
Y-1Q4 POEMS 2 by Alan Dugan
Y-io5 OPEN VISTAS by Henry Margenau
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Y-107 LECTURES ON MODERN IDEALISM by Josiah Royce
Y-io8 SHAKESPEARE'S STAGE by A. M. Nagler
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Y-H5 FUNDAMENTAL LEGAL CONCEPTIONS by Wesley Newcomb Hohfeld
Y-n6 MANKIND EVOLVING by Theodosius Dobzhansky
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Labaree
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Y-ng UTOPIA edited by Edward Surf, 5.J.
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Y-124 FACTS AND VALUES by Charles L. Stevenson
¥-125 THE AGE OF JOHNSON edited by Frederick W. Hilles
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Y-i^o THE COLONIAL PERIOD OF AMERICAN HISTORY, VOLUME i by Charles

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Y-134 DIRECT USE OF THE SUN'S ENERGY by Harrington Daniels
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Y-136 CENTRAL PLANNING by Jan Tinbergen
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